Power v Swanfire Holdings Pty Ltd
[2007] WADC 158
•6 SEPTEMBER 2007
POWER -v- SWANFIRE HOLDINGS PTY LTD [2007] WADC 158
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 158 | |
| Case No: | CIV:403/2003 | 13-17 NOVEMBER 2006 | |
| Coram: | COMMISSIONER ELLIS | 6/09/07 | |
| PERTH | |||
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Leave to commence proceedings granted Judgment as to liability for the plaintiff | ||
| PDF Version |
| Parties: | COREY POWER SWANFIRE HOLDINGS PTY LTD INSURANCE COMMISSION OF WESTERN AUSTRALIA |
Catchwords: | Negligence in maintenance of motor vehicle Leave to commence proceedings |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1943 s 29, s 29A |
Case References: | Blum v Motor Vehicle Insurance Trust [1966] WAR 122 March v E and HM Stramare Pty Ltd (1990 – 1991) 171 CLR 506 Rosenberg v Perceval (2001) 205 CLR 434 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SWANFIRE HOLDINGS PTY LTD
Defendant
- Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant
Catchwords:
Negligence in maintenance of motor vehicle - Leave to commence proceedings
(Page 2)
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 s 29, s 29A
Result:
Leave to commence proceedings granted
Judgment as to liability for the plaintiff
Representation:
CIV 403 of 2003
Counsel:
Plaintiff : Mr I L K Marshall
Defendant : Mr R Sands
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
Defendant : Talbot & Olivier
CIVO 45 of 2004
Counsel:
Plaintiff : Mr I L K Marshall
Defendant : Mr R Sands
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
Blum v Motor Vehicle Insurance Trust [1966] WAR 122
March v E and HM Stramare Pty Ltd (1990 – 1991) 171 CLR 506
Rosenberg v Perceval (2001) 205 CLR 434
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
(Page 3)
COMMISSIONER ELLIS:
Summary
1 These proceedings arise out of a motor vehicle accident which took place on 26 June 2000. The plaintiff was the driver of a truck which was owned by the plaintiff's then employer, Swanfire Holdings Pty Ltd ("Swanfire"). The plaintiff alleges that Swanfire's negligence caused the accident and is seeking damages for personal injuries as a consequence.
2 Four questions arise for determination at this stage:
(a) Should the plaintiff be granted leave to pursue his action for damages under s 29A of the Motor Vehicle (Third Party Insurance) Act, 1943 ("Act")?
(b) If leave is granted:
(1) Was Swanfire negligent in its maintenance of the motor vehicle?
(2) If Swanfire was negligent, did that negligence cause the accident?
(3) To what extent was the accident caused or contributed to by the negligence of the plaintiff?
(a) The plaintiff should be given leave to pursue his claim under s 29A of the Act.
(b) The defendant was negligent in the following respects:
(1) it failed to repair the suspension of the vehicle after complaint was made to the principal of Swanfire by the plaintiff and by a Mr Williams, the manager of Swanfire's business; and
(2) it failed to take reasonable steps to maintain the suspension by adequately greasing the spring hanger assembly, which formed part of the truck's suspension.
(c) The negligence of the defendant caused the accident.
(d) The plaintiff did not cause or contribute to the accident.
(Page 4)
Procedural Background
4 Before providing the reasons for my conclusions, I should deal with some procedural matters.
5 Two proceedings were before me:
(a) Proceedings 403/2003 was the plaintiff's substantive claim for damages against Swanfire.
(b) Proceedings CIVO 45/2004 was an application under s 29A of the Act for leave to pursue the substantive proceedings. It was brought against the Insurance Commission of Western Australia ("Commission").
CIVO 45/2004 was necessary because the plaintiff did not give notice to the Commission as soon as practicable after the accident as required by s 29 of the Act. Section 29 of the Act was also pleaded as a defence to proceedings 403/2003.
6 Orders were made that CIVO 45/2004 be heard prior to the hearing of CIV 403/2003. The parties agreed that the two proceedings should be heard at the same time.
7 Orders were also made that the trial deal only with the question of liability. The assessment of damages was deferred until after liability has been determined.
8 Swanfire and the Commission were represented by the same lawyers. I shall refer to "the defendant" where no distinction between the two entities is necessary and to Swanfire and the Commission where it is.
Section 29A of the Act
9 Section 29 of the Act provides that an action cannot be brought against the Commission or a person insured by it in respect of personal injuries caused in a motor vehicle accident unless the plaintiff gives notice to the Commission as soon as practicable after the occurrence giving rise to the claim (i.e. the accident). The accident occurred on 26 June 2000. Notice was not given to the Commission until 9 May 2002, nearly 2 years after the occurrence. The plaintiff did not dispute that the defendant was insured by the Commission and that he had not complied with s 29 of the Act.
10 Section 29A of the Act permits the Court to relieve a plaintiff of the adverse consequences of a failure to comply with s 29 of the Act.
(Page 5)
- Section 29A is a two stage process. The Court must first determine whether the failure to give notice "was occasioned by mistake, inadvertence or any other reasonable cause or that the Commission is not materially prejudiced in its defence or otherwise by the failure or defect". If the Court is satisfied that either or both of these conditions is satisfied, the Court may grant leave. It is not obliged to do so. In exercising the discretion whether to grant leave, the Court takes into account all the circumstances of the case (Blum v Motor Vehicle Insurance Trust [1966] WAR 122 at 126). Relevant factors include the reason for the failure to give notice and the nature and extent of the prejudice that would be suffered by the parties if leave were or were not granted. I must also take into account the policy demonstrated by the Act that notice ought be given in accordance with the requirements of s 29, while having regard to the beneficial legislative intent of relieving plaintiffs from the consequences of their mistakes (see Blum (supra)at p 127).
11 The plaintiff gave evidence about why notice was not given in time. His evidence was that he thought responsibility for giving notice rested on his employer. He was brought up in Victoria. Apparently, the system there is different from that in Western Australia. While he was in Victoria, his mother was involved in giving notice on behalf of an employer to the relevant Victorian authority, so he had some awareness of the Victorian system. The defendant made a claim under its insurance policy in respect of damages to the truck and the plaintiff was aware that this claim was made. After the accident, the plaintiff consulted two firms of solicitors, primarily in relation to a workers' compensation claim. They did not inform him of his obligation under s 29 of the Act. He subsequently consulted a third firm of solicitors, which gave notice on his behalf a short time afterwards. This evidence was uncontradicted and is not inherently implausible. I accept it.
12 The defendant argued that the conduct of the plaintiff in failing to give timely notice was not "inadvertence" because the plaintiff had kept the fragment. The conduct of the plaintiff is consistent with an inadvertent failure to give notice. The position of the plaintiff is not that he did not intend to pursue his rights in respect of the accident. The position of the plaintiff is that he was not aware that it was necessary for him to give notice in accordance with the Act in order to pursue those rights.
13 I consider that the reasons for the plaintiff's failure to give notice fall within the expression "mistake … or any other reasonable cause" in s 29A
(Page 6)
- of the Act. It follows that a condition for the exercise of the discretion to grant leave has been satisfied.
14 It is now necessary to consider whether relief should be granted to the plaintiff.
15 The defendant argued that it had suffered significant prejudice in the preparation of its case because of the plaintiff's failure to give notice and that my discretion should be exercised against the plaintiff for that reason. To evaluate this argument it is necessary to outline the circumstances of the accident and some of the evidence about how the accident was caused.
16 The accident occurred at the intersection of Bindah Road and the Mount Weld Rd. The intersection was about 5 kilometres outside Laverton. The intersection is a "T" junction. Bindah Road is the terminating road, and Mt Weld Rd the continuing road. Bindah Road provides access to a number of mines in the area. It was also referred to in evidence as the Sunrise Dam Rd. Sunrise Dam is one of the mines to which it gives access. Near the intersection, both Bindah Road and Mt Weld Road were gravel roads.
17 The truck involved in the accident was a 1982 Isuzu 500 Tilt Tray Truck. Its load was 5 tonne. The tray was a tilt tip tray. The truck had twin rear wheels, but only single wheels at the front. It had travelled in excess of 300,000 kilometres at the time of the accident.
18 The defendant’s business was based in Leonora. One of the business activities carried on by the defendant was the removal of septic waste from various sites, including mine sites in the Laverton and Leonora areas. For that purpose, the defendant had a large tank, which was chained to the tray on the back of the truck when required. The tank had a 4,800 l capacity. The waste was put into the tank. The defendant also carried on other businesses. It was the local agent for both Wreckair and Budget Rentacars. Wreckair is an equipment hire company.
19 The plaintiff's was employed as a truck driver and general hand for the defendant. He started work with the defendant in about February 2000. He had previously worked as a truck driver for another company in the area. The principal of the defendant was a Mrs Branch Smith. She was a director and shareholder of the business and gave evidence on behalf of it. The business also employed a Mr Williams. His title was manager, although it appears that Mrs Branch-Smith had the final say when it came to spending money. Mr Williams gave evidence for the plaintiff. Swanfire also employed a
(Page 7)
- mechanic. Different persons filled the role from time to time. At the time of the accident, the incumbent was a Mr Falconer. The previous mechanic, a Mr Houliston, had left the business about 3 months before the accident. A Mr Broadbent also gave evidence on behalf of the defendant. He was a former manager of the defendant. He resumed those duties when Mr Williams left, shortly after the accident.
20 Swanfire had been engaged to remove a large quantity of septic waste from the Sunrise Dam Mine. On 26 June 2000, Mr Power had driven to Sunrise Dam, filled the tank and was returning to base to unload the waste. Mr Williams was to take over driving the next load.
21 Mr Power's evidence in chief about how the accident occurred is as follows. The road from Sunrise Dam to the intersection is largely straight, with few turns. Mr Power gave evidence that there is a gradual incline as one approaches the intersection from the direction of Sunrise Dam, which starts between 600 and 800 metres before the intersection. When Mr Power approached the base of the incline, he was travelling between 70 and 75 kilometres per hour and was in fifth gear. When he got to the top of the incline, he changed from top gear into fourth gear. He had engaged the exhaust brake. At that point he put his foot on the foot brake, he heard a "very, very loud crack". So far as he could tell, the truck lifted up on the passenger side "in a motion like it wanted to twist and barrel roll." He took his foot off the brake and the truck settled down. He reapplied the foot brakes and heard a second bang. When this occurred "he lost the ability to drive in a straight line". The front passenger side lifted from the ground. The truck "stepped sideways", which Mr Power explained to mean that the rear of the truck suddenly moved to the right. At that stage, the truck was still in fourth gear. Mr Power changed down to third gear, reducing his speed to about 50 kilometres per hour. He tried to set the truck for the corner. The truck was travelling between about 40 and 45 kilometres per hour as it entered the corner. Mr Power considered that would have been a safe speed to take the corner, in ordinary circumstances, even considering the load on the truck. Mr Power indicated that there were difficulties controlling the truck as it entered the corner and "he began to run out of road". He noticed the windrow, which was perhaps two feet back from the Mt Weld Rd. He formed the view that it would not be desirable to hit the windrow at an angle so, after getting about two thirds the way round the corner, he turned towards the windrow and tried to straighten up. The truck went over the windrow. The truck came to rest about 50 metres beyond the windrow. It was lying on its left side. It was slightly to the left of the continuation of Mt Weld Road.
(Page 8)
22 The defendant challenged Mr Power's evidence about attempting to turn the truck round the corner, and there were some discrepancies as to details of this account. These are discussed below. The defendant did not, however, challenge the broad sequence of events recounted by Mr Power, which I accept. Mr Apgar gave expert evidence on behalf of the plaintiff. His evidence was that Mr Power's account of the behaviour of the truck was in accordance with Mr Apgar's understanding of how trucks might behave in these circumstances.
23 Mr Power said he did not recall the actual collision. His next recollection was coming to, with the truck on its side and getting out of the truck.
24 It was not disputed between the parties that the accident involved the failure of the left rear spring hanger on the truck. A spring hanger is part of the suspension of the truck. It anchors the spring assembly to the chassis of the truck. The springs on the truck were leaf springs. The springs were attached to the rear axle and to the truck chassis on either side of the axle. On the Isuzu truck, spring hangers were found only to the rear of the axle. The pack of leaf springs was supported at the chassis in front of the rear axle by "slippers", or flat plates, projecting from the chassis, which allow lateral movement by the end of the spring pack while preventing vertical movement.
25 An example of a spring hanger assembly was tendered. The body of the spring hanger assembly is a large metal housing. This is referred to as the spring hanger perch. It is attached to the chassis by four rivets and a bolt on the inboard side. A substantial metal pin runs from one side of the spring hanger perch to the other. The pin provides the immediate support to the leaves of the spring pack. The longest of the leaves of the spring pack curls around on itself. The spring hanger pin is inserted through the curl at the end of the leaf and, as part of the entire spring hanger assembly, thereby supports the spring pack. The encircling leaves of the spring pack do not come in direct contact with the pin itself. There is a small sleeve which fits between the pin and the leaves of the spring pack. It runs the length of the pin.
26 The pin is connected to the spring hanger perch at either end. At the outboard end, there is a clamping device, which holds the pin in place, and a grease nipple. At the inboard side of the perch, there is a ring of metal, into which the pin is inserted.
(Page 9)
27 The pin is about 2.5 centimetres in diameter. The pin itself is not entirely solid. A hole about 0.75 centimetres in diameter runs through the pin. (It is not clear whether this hole runs the length of the pin, or only goes half way.) Half way along the length of the pin there is a small flat channel, which runs round the pin. There is another small hole which runs from the channel to the centre of the pin, connecting with the hole which runs along the axis of the pin. The purpose of these features is to enable grease to be pumped into the assembly using the grease nipple on the outboard end of the spring hanger perch. The grease passes through the hole, escapes to the surface of the spring hanger pin at the channel, and provides lubrication to the surface of the pin, where the pin is in contact with the sleeve.
28 Mr Power gave evidence that he returned to the scene of the accident about 9 days after the accident. He was on his way to collect some personal effects at the Sun Rise Dam mine site, where he had left them on the day of the accident. He found a fragment of a broken spring hanger ("the fragment") on the side of the road, which he kept. In his evidence in chief he said that he parked about 300 or 400 metres from the intersection. The fragment was tendered at trial. It was agreed by the parties, from an examination of photographs of the truck tendered in evidence, that the fragment matched with the remnant of the spring hanger perch that remained on the truck ("the remnant") and that the fragment came from the truck.
29 The fragment contains a part of the spring hanger pin and part of the spring hanger perch. The pin is broken about half way along its length. The break occurs just after the channel in the middle of the pin. The rest of the pin between the middle and the inboard end of the pin, was lost. The lost piece would have been about an inch long.
30 It was common ground that there had been two fractures of the pin. One was about half way along the pin and has been described above. The other ("the inboard pin fracture") was near where the pin connected to the body of the truck and close to the supporting ring of metal. It was accepted by Mr Apgar and by Dr Chew, who gave evidence on behalf of the defendant, that the inboard pin fracture caused the subsequent failure of the spring hanger perch. It was also accepted that the inboard pin fracture happened first.
31 Without the support provided by the pin, excessive forces were applied to the spring hanger perch, which fractured. The fracture was an uneven one, which ran from the outside front corner of the spring hanger
(Page 10)
- perch to the inside rear end of the spring hanger. Dr Chew gave expert evidence on behalf of the defendant. He said that the fracture surface could be divided into two parts. The first two thirds of the fracture surface showed evidence of progression over time. That is, the fracture was a series of small fractures which gradually worked their way from the outside front end towards the inside rear end. The final third of the fracture surface did not show these signs and had probably occurred in a single, rapid, episode. Mr Apgar, the expert witness called on behalf of the plaintiff, adopted this analysis.
32 Five items were particularised as allegations of negligence in the plaintiff’s statement of claim. The particulars under par 3 of the plaintiff's statement of claim read as follows:
"The defendant was negligent in that it:
(a) failed to heed the plaintiff's request for the suspension to be fixed prior to the accident;
(b) failed to ensure that the suspension system on the truck was properly serviced;
(c) failed to ensure that the spring hanger pin was greased on a regular basis;
(d) failed to heed the concerns of the plaintiff and another employee of the defendant concerning the roadworthiness of the truck; and
(e) instructed the plaintiff to utilise the truck when it was unroadworthy and in need of servicing."
33 In terms more specific to the facts of this case, the allegations made were as follows:
(a) Mr Power and Mr Williams complained to Mrs Branch-Smith that the suspension of the truck was unsatisfactory. The complaint was made about 2 to 3 months before the accident. The suspension was not serviced prior to the accident. Although arrangements to service the suspension were made, the service was not carried out. The plaintiff continued to drive the truck. These factual allegations relate to the particulars of negligence referred to in par (a), par (b), par (d) and par (e).
(Page 11)
- (b) The spring hanger was not greased adequately or at all. This conduct was mainly pressed in relation to particular (c), although it is relevant to par (b) as well.
34 The defendant alleged that it had been prejudiced in the following respects:
(a) It had documentation evidencing the extent of the maintenance work which carried out on the truck. The documentation was lost after the accident, but before notice of the accident was given by the plaintiff;
(b) It was not possible to determine what caused the spring hanger perch to brake without the opportunity to examine the remnant of the spring hanger pin on the truck; and
(c) The plaintiff had not provided the defendant with access to the fragment at an earlier stage of the proceedings.
35 First, in relation to the loss of maintenance records, Mrs Branch-Smith gave evidence that a record was kept of the maintenance work on the truck by the mechanic in the workshop. Swanfire went into liquidation on 17 December 2001, i.e. before notice was given under s 29 of the Act. Mrs Branch-Smith said that she had attempted to obtain the maintenance records, but that the liquidator said the documents had been destroyed. As a consequence, the documentary records were not available to the defendant in preparing its case.
36 Mrs Branch-Smith conceded in cross examination that the defendant did not have a quality assured preventative maintenance program for the truck, although she maintained that there was a program which had been modelled on the program for Wreckair equipment. She also agreed with the proposition that the defendant "had a routine maintenance system, although it was not documented. There are receipts, and that sort of thing, for the work completed on the truck by outside people such as Truckpower, and receipts for parts needed for maintenance and repairs". Mrs Branch-Smith argued that the lack of documentation was a lack of formal quality control documentation, rather than a complete lack of written records. In re-examination, Mrs Branch-Smith referred to a book, that was kept by the mechanic in the workshop in a grey filing cabinet with other paperwork. She described it as a "kilometre book". She said "it showed what was done to the trucks: services, the date, the kilometres and the parts bought". I infer from these remarks that the documentation maintained by the defendant was directed towards services and expenditure associated with services.
(Page 12)
37 Mrs Branch-Smith also conceded that the mechanic employed at the time of the accident was not an enthusiastic worker, although he was competent.
38 I consider it likely that the records would, at best, have recorded situations where a specific service was carried out or where parts were required. The greasing of the grease nipples on the spring hanger perch would not have fallen into this category and, accordingly, loss of the records of services would not provide evidence whether the spring hanger perch was or was not adequately greased.
39 The plaintiff's other allegation of negligence was that suspension was not serviced. The failure to repair or replace the suspension was based upon the specific complaint made by the plaintiff and Mr Power. There was some uncertainty about when the suspension was last serviced prior to the accident. Mrs Branch-Smith gave evidence that the suspension was replaced about 6 months before the mechanic then employed by the defendant left. Mr Houliston, the mechanic in question, left approximately 3 months before the accident. It was not alleged that the suspension had exceeded its scheduled life. The loss of service records was not, therefore, relevant to this aspect of the plaintiff's case, and the defendant suffered no prejudice in respect of it by reason of their loss.
40 Some of the evidence given by the plaintiff's witnesses went to a general lack of maintenance. I do not regard this evidence as particularly relevant. Except insofar as the maintenance related to the greasing of the spring hanger pin or to the suspension, a general lack of maintenance is not causally relevant to the occurrence of the accident.
41 Secondly, the defendant said that it was prejudiced its defence because it did not have the opportunity to examine the truck soon after the accident and, in particular, did not have the opportunity to examine the remnant of the spring hanger pin which was left on the truck after the accident.
42 The truck was recovered from the scene of the accident the next day because it was regarded as a biohazard. The truck was taken to the defendant's yard from the scene of the accident. It was removed from the defendant's yard to a wrecker's yard within about 9 days. The truck was destroyed after the accident. No evidence was given of the date of destruction of the truck or the identity of the wrecker which carried out this operation.
(Page 13)
43 The significance of the lack of an opportunity to examine the stub of the spring hanger pin left in the truck was emphasised by Dr Stephen Chew. In his report of 8 February 2006 (at par 38), Dr Chew identified six possible causes of the fracture of the pin. They were:
(a) The presence of a material defect for example casting defect;
(b) The presence of a fabrication defect for example poor machining resulting in the presence of surface stress concentrators;
(c) The presence of an assembly defect for example overload during the assembly of the pivot pin resulting in the presence of surface stress concentrators;
(d) The presence of wear marks on the surface of the pivot pin;
(e) The presence of surface corrosion due to inadequate lubricant; and
(f) The presence of a crack caused by an operational overload event.
It is convenient to broadly categorise the possible causes referred to by Dr Chew. Each of par (a) and par (b) might be described as differing types of inherent defects, along with par (c), which also relates to the state of the pin prior to operation. Paragraph (d) and par (e) might be regarded as operational issues and the final possible cause categorised as overloading. Dr Chew's said at par 50 of his report of 8 February 2006 that, "in the absence of results ascertained from examination and testing of the fracture surface in question, it is simply impossible to nominate one of the six possible causes as being the more probable one." Mr Apgar, who gave evidence on behalf of the plaintiff, reported no such difficulties. He did concede in cross-examination that examination of the pin itself would have been of assistance in determining the nature of the fracture.
44 I consider that Dr Chew's approach on this issue is unduly cautious. The Court is obliged to make determinations on the balance of probabilities. In certain circumstances, it may be possible to infer a conclusion with the confidence necessary in civil proceedings, without having carried out direct tests on the various parts (Rosenberg v Perceval(2001) 205 CLR 434 at par 44). It would be possible to express views about the comparative likelihood of various of the possible explanations without the benefit of examining the parts, even if it was not possible to rule out some explanations. For example, one of the possible causes of the fracture identified by Dr Chew was an operational overload event. Mr Apgar provided estimates of the likely design parameters of the spring hanger perch and pin and of the likely load placed on the pin during the course of operations. On his calculations, the likely operational loadings were substantially less than the design capacity of the spring hanger perch
(Page 14)
- and pin. Mr Apgar was not challenged on his calculations or his assumptions. Further, there is no evidence of any unusually great load placed on the spring hanger perch and pin prior to the failure of the suspension. This enables the possibility of an operational overload to be eliminated.
45 It must also be borne in mind that the plaintiff bears the onus of proof in the substantive proceedings. If it is not possible to ascertain the cause of the fracture of the pin, the plaintiff will fail on that issue and the defendant will not suffer prejudice. That said, the lack of the opportunity to examine the remnant of the spring hanger pin on the truck would have assisted in evaluating the likelihood of the various hypotheses and should be regarded as prejudicial to the defendant.
46 The defendant also made a more general point on this issue. Late notice prevented it appointing an assessor to generally investigate the circumstances of the accident. During the period the truck was in the defendant's yard an insurance assessor attended, apparently on behalf of the property insurer. There was no evidence of any statement from Mr Power. The Commission did not appoint an assessor and did not investigate the matter. A Mr Feerone gave evidence on behalf of the defendant. He was a claims supervisor employed by the Commission. I accept his evidence that it was the usual practice of the Commission to appoint an assessor to investigate the circumstances of an accident in which only the driver was involved. The plaintiff argued that the defendant did not suffer prejudice in this regard because of the investigation of the property insurer's assessor. The report assessor's report was not tendered as such. It appears to have included a statement from, at least, Mrs Branch-Smith and some photographs. The photographs were tendered into evidence. However, the interests of the property insurer differed from those of the defendant. The investigations were no doubt directed to those interests, rather than those of the Commission or Swanfire in respect of a claim for personal injury. I accept that the existence of the property insurer's assessor's report mitigated, but only slightly, the prejudice occasioned by the Commission's inability to appoint its own assessor.
47 Again, the lack of opportunity to examine the truck is primarily relevant to the allegation that the defendant failed to grease the spring hanger perch. It does not appear that the lack of an opportunity to examine the truck has a significant bearing on the allegation that the suspension should have been serviced. The defendant did not dispute that the failure of the spring hanger pin lead to the accident. The dispute, and
(Page 15)
- the area of Dr Chew's uncertainty, related to the cause of the failure of the spring hanger pin.
48 Thirdly, the defendant argued that I should take into account the fact that the plaintiff had kept the fragment of the spring hanger in his possession for years before disclosing its existence. The defendant only became aware of the fragment when Mr Apgar's report was produced. Section 29A is concerned with the giving of notice, not the disclosure of evidence. A copy of the form of notice prescribed under the Act was tendered in evidence. Although it required information about the circumstances of the accident, it does not require a claimant to provide evidence. It would have been open to the plaintiff to not disclose the existence of the remnant, even if he had given notice of the accident as soon as practicable. The failure to disclose the existence of the fragment is not a reason to refuse to grant leave.
49 In summary, I accept that the defendant has suffered prejudice as a result of the failure of the plaintiff to give notice. The prejudice relates to the inability to examine the stub of the pin and the truck in the period immediately after the accident.
50 However, the prejudice suffered by the defendant must be weighed against other relevant factors:
(a) The plaintiff will suffer prejudice if leave is not granted. The significance of this factor depends upon the reason for the failure to give notice. In this case, the failure to give notice arose from a misunderstanding of the position in Western Australia and a failure on the part of his legal advisers to advert to the issue.
(b) The prejudice suffered by the defendant relates to the allegation that the defendant failed to grease the spring hanger perch. There does not appear to have been significant prejudice suffered by the defendant in relation to the allegation that the suspension should have been replaced; and
(c) There is a substantial amount of evidence in relation to the circumstances of the accident and its causes. Although it has not been possible to examine the truck, the fragment of the spring hanger perch was available for inspection and assisted significantly in understanding how the accident occurred.
51 Having regard to all the circumstances, I am satisfied that the interests of justice require that I relieve Mr Power of the consequences of his failure to give notice in accordance with s 29 of the Act.
(Page 16)
Negligence
52 As indicated above, the plaintiff alleged that the defendant was negligent in:
(a) failing to have the suspension serviced, in light of complaints made by Mr Power and Mr Williams; and
(b) not greasing the spring hanger pin adequately.
Failure to service the suspension
53 Both Mr Power and Mr Williams gave evidence that they had complained to Mrs Branch-Smith about the state of the suspension prior to the accident. Mr Power gave evidence that he mentioned the suspension to Mr Williams on a number of occasions. He said he "just felt there was something wrong with the suspension" and that it needed to be checked out. He said that when he first started working for the defendant, he noticed that the rear wheels were not recovering as quickly as he expected and that the suspension was a making "a lot of loud sort of creaky noises".
54 Mr Power gave evidence that he raised his concerns with Mrs Branch-Smith the day before the accident took place. He said that he wondered whether the suspension would hold up in light of the large number of kilometres on dirt tracks with a full load that was to be done as part of the contract with Sons of Gwalia Ltd, the owner of the Sunrise Dam mine. His evidence was that she replied "if I didn't want to drive the bloody truck, I'll get someone who would". Mr Power also gave evidence that he raised his concerns about the suspension with Mr Williams.
55 Mr Williams, who drove the truck as part of his duties, gave evidence that the suspension was not adequate. He said the vehicle did not travel well under load. He said it seemed to "wallow or sway under load."
56 Mr Williams confirmed that Mr Power raised concerns about the vehicle with him. He said he took those concerns to his employer, which I understood to mean Mrs Branch-Smith.
57 Mr Williams did not give evidence at trial of any conversation involving the plaintiff and Mrs Branch-Smith about the state of the suspension. Prior to the hearing, Mr Williams gave a statement to Mr Power's solicitors. The statement was not dated but was annexed to Mr Power's affidavit of 29 October 2003 in support of his application for
(Page 17)
- leave to proceed. In par 5, the statement says that there was a substantial amount of work that needed to be done on the truck, although Mrs Branch-Smith was not prepared to spend the money. The statement proceeds:
"On one occasion Cory [Power] and I went in and approached her about the weight to be carried on the truck and our concerns about the legal weight and were told that its okay if he did not want to drive the truck. She would get someone who will."
The statement then goes on, in par 6, to deal with an incident in which the front bearing caught fire. The affidavit does not suggest that this conversation took place the day before the accident. Mr Williams' statement was not put to Mr Power or Mr Williams in cross-examination.
58 Mrs Branch-Smith conceded in cross examination that both Mr Power and Mr Williams made complaints to her about the truck's suspension. She said that the complaints were made not quite two or three months before the accident. She said "I wouldn’t keep something like that waiting three months if it was serious, no".
59 Mr Williams also gave evidence that, about two to three months before the accident, he had made arrangements with a Kalgoorlie firm, P & S Springworks, to replace the springs. He said that Mrs Branch-Smith cancelled the work shortly before it was to be carried out. Mrs Branch-Smith did not dispute that steps were taken to arrange repair of the suspension and that those steps were not implemented before the accident occurred. I accept that servicing was arranged. The fact that the suspension was to be serviced is also evidence that complaints had been made to Mrs Branch-Smith about the suspension.
60 I also find that complaints were made to Mrs Branch-Smith about the condition of the suspension some time before the accident occurred. It is not possible to put a precise time frame on the complaints being made. However, in light of the evidence that the arrangements were made to have the suspension repaired, I am satisfied that there were made a sufficient time before the accident to enable repair work to be carried out.
61 There was some dispute about the reason the work on the suspension did not proceed. It was put to Mrs Branch-Smith that the work was cancelled for financial reasons. Mrs Branch-Smith stated that maintenance got done. However, she also said that in May of that year, the tax for the business had just been paid. The implication was that there was a cash shortage that month. She maintained that it was a temporary
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- one and that the maintenance work would have been done. She also complained that most garages sent an account, which would have allowed some time for payment. The subtext was that the particular garage selected by Mr Williams demanded cash and that this was a problem.
62 Cost may be a factor in determining what steps might be reasonable to deal with a perceived risk to employees. In certain circumstances, some time may pass before maintenance can be undertaken, depending on the nature of the nature of the risk, the cost of fixing it and factors such as the time necessary to obtain parts or arrange for the maintenance to be carried out. Mr Apgar gave evidence that the cost of replacing the collar or sleeve around the spring hanger pin was not significant. He estimated the cost at $200 to $300. There was no specific evidence of the price of the service which Mr Williams had arranged. However, the suspension had been serviced recently, so the expense was not out of the ordinary. It may be regarded as a reasonably standard business expense associated with operating an old vehicle.
63 It was argued by the defendant that there was no evidence that the complaints of Mr Power and Mr Williams related specifically to the safety of the truck and that the response of the defendant should be evaluated in this context. However, the suspension is a part of the truck which is critical to its safety, and complaints of defects in the suspension should be dealt with promptly. It should have been given priority in the affairs of the defendant. The remarks of Mr Broadbent are relevant in this context:
"Now I've driven trucks where the suspension has felt soft and didn't seem to handle right. Like, if you went into a corner it seemed to have quite a bit of body roll in the vehicle or what have you. I would say that suspension would definitely need replacing."
- Mr Apgar gave evidence to similar effect. It was not necessary for Mr Williams or Mr Power to have said that the truck was unsafe.
64 The standard of care owed by an employer to an employee is well established and was not contentious in the proceedings. An employer must take reasonable care for the safety of employees (Vozza v Tooth & Co Ltd(1964) 112 CLR 316). Once complaint had been made about the suspension, a reasonable employer would have appreciated that continued operation of the truck involved increased risk of injury to employees and that the added risk could be ameliorated by a standard service. I consider that the failure to service the suspension was a failure by the defendant to exercise reasonable care to its employees.
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65 There was no evidence about the anticipated useful life of spring hanger assemblies or spring packs. However, the plaintiff did not allege that the spring pack should have been replaced because it had reached the end of its life. Indeed, there was evidence that the springs had been replaced fairly recently. The case of the plaintiff was that it should have been serviced because of specific complaint. I accept this argument.
Lack of greasing
66 The plaintiff also alleged that the defendant failed to maintain the truck by failing to grease the spring hanger.
67 The condition of the fragment is relevant to whether greasing was carried out. Mr Apgar gave evidence about the condition of the fragment when it was first delivered to him prior to the preparation of his report of 3 November 2005. He said that the fragment was very rusted and corroded and, with one small exception, there were no signs of grease on the fragment. The exception to which he referred was a small amount of grease which was in the hole running through the centre of the pin.
68 Counsel for the defendant argued that no conclusion could be reached about the state of the fragment at the time of the accident because of:
(a) the lapse of time since the accident;
(b) the fact that the fragment had been exposed to the elements for about 9 days before Mr Power found it; and
(c) Mr Power's retention and storage of the fragment after he found it.
Mr Power indicated that he did not clean the fragment. He said that the fragment had some "dirt and stuff" on it. He said that he wrapped the fragment in material and put it in a plastic bag in his laundry, which presumably came off in handling. Mr Apgar disagreed with the argument that storage would have removed the grease. I note that the speck of grease remained on the fragment when it was tendered in evidence even though the fragment was cleaned by a Mr Laczko, a metallurgist with solvents and a soft brush, and by Dr Chew.
69 Mr Apgar gave evidence that there was "quite a lot of corrosion" on the spring hanger pin. Dr Chew also commented that the bearing surface of the pin had been subject to quite heavy corrosion. Mr Apgar drew the inference that the spring hanger pin had been without grease for quite a long time from the extent of corrosion. It was suggested to Mr Apgar that this reasoning was inconsistent with the report of Mr Laczko which was
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- tendered in evidence. Mr Laczko stated that "the failed spring hanger was rusted all over, as would be expected if it was left out in the weather for a week or more after the failure" (i.e. in the period between the accident and the fragment being found). As grease would only have been applied to some surfaces of the fragment, overall corrosion was therefore inconsistent with a link between lack of grease and corrosion. However, the fragment did not appear evenly corroded all over. The face of the fracture appeared less corroded than the casing.
70 I consider that the lack of grease on the fragment when given to Mr Apgar and the corrosion on the fragment both indicate that the spring hanger perch and pin were not greased at the time of the accident. This in turn indicates that the spring hanger perch and pin were not adequately greased prior to the accident.
71 Photographs of the truck taken shortly after the accident were also tendered in evidence. Even allowing for dusty climatic conditions and the fact that the truck had fallen onto its side in dirt during the accident, the photographs show no visible signs of the application of grease.
72 Mr Power and Mr Williams gave evidence that they had never seen Mr Falconer carry out regular maintenance work on the truck. However, they conceded that maintenance work was carried out when the truck was broken and needed repairs.
73 Mrs Branch-Smith and Mr Broadbent both asserted that servicing work was carried out on the truck. Mrs Branch-Smith gave evidence about the servicing of the truck. She said that minor service work was carried out every 2000 kilometres. She initially said that they had to "check the air filters, oil, the water. That is a minor service." Counsel for the plaintiff subsequently asked her another question about the about work. She said the regular maintenance work carried out every 2,000 kilometres. Mrs Branch-Smith said "That's checking all the hoses, the air brakes - the air lines, in other words; steering. You'd go right round the vehicle. You'd check the grease nipples, you'd check the axles, and that should be done once a week. There's nothing wrong with doing it once a week". This remark suggests that weekly greasing was aspirational. Mrs Branch-Smith agreed, in cross examination, that Mr Falconer was not as diligent as the previous mechanic. She conceded that Mr Falconer was not keen to work on the truck unless it was washed and gave evidence that Mr Power and Mr Williams were not keen to wash the truck.
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74 Mr Broadbent ceased working for the defendant as manager about 4 months before the accident. He resumed work for the defendant after the accident occurred. He did not work in the business while Mr Falconer was responsible for servicing the truck. He did state that greasing of the truck was done approximately every week while he was there.
75 There were differences between Mr Broadbent and Mrs Branch-Smith about how regularly the truck was serviced. Mrs Branch-Smith said that the truck was serviced every 2,000 kilometres and that the truck was travelling 3,500 to 5,000 kilometres per week. This would have meant that the truck required servicing a couple of times a week. Mrs Branch-Smith described the service which took place every 2000 kilometres as a minor one. Mr Broadbent suggested that there was a minor service every 10,000 kilometres. There were also differences between them as to the average kilometrage done by the truck. I appreciate that the events occurred some time ago. However, this discrepancy does indicate that maintenance work was not subject to a well recognised specific schedule.
76 Mr Williams gave evidence of an occasion on which he saw large blobs of grease attached to the spring hanger. It was argued that this showed that the spring hanger was defective. I am not prepared to draw this inference. It is consistent with the grease being improperly or excessively applied, rather than a defect in the spring hanger itself. Mr Power gave evidence in cross examination that he had noticed grease hanging from the underneath of the spring hangers on one occasion. His evidence was that, when he mentioned it to Mr Williams, Mr Williams replied, "yes, mate. Its been greased up", rather than expressing any concern.
77 Mr Williams also gave evidence that he noticed that the spring packs on the truck were tilted inwards, and that this was evidence of the poor condition of the spring hanger. I am sceptical about this evidence. The spring hangers are attached to the axle and to the chassis so as to prevent movement along the axle. It is hard to see how the top part of the spring pack assembly could have moved a sufficient distance laterally to enable this angle to become apparent. However, I do not find it necessary to rely on this evidence to reach the conclusion that greasing was not carried out regularly.
78 No evidence was given about the appropriate maintenance cycles for greasing of the spring hanger. This would have been relatively easy for either party, but the onus of proof is on the plaintiff. In large part, the
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- maintenance cycle was not a live issue at the hearing. The defendant did not dispute that regular greasing of the nipples was appropriate. The evidence on behalf of the plaintiff was that there was virtually no greasing.
79 Based on the materials referred to at par 67 to par 75 above, I conclude that there was a failure, prior to the accident, to grease the spring hanger adequately.
80 I consider that the failure to grease the spring hanger pin was negligent. The steps necessary to grease the spring hanger were not substantial or expensive. They would not have interfered substantially with the pursuit of the business activities of the defendant. Routine maintenance of equipment such as trucks is directed to ensure that the equipment operates safely.
Causation
81 It is also necessary for the plaintiff to establish that Swanfire's negligence caused the accident. Three arguments were put on behalf of the plaintiff on the issue of causation:
(a) The maintenance work on the spring hanger organised by Mr Williams, but not carried out, would have lead to detection of the fracture and prevented the accident;
(b) The lack of greasing lead to the fracture of the pin, which caused the accident; and
(c) Proper maintenance would have lead to detection of the crack in the spring perch before the accident, enabling the accident to be prevented; and
82 I accept that servicing the suspension would have prevented the accident taking place. Servicing the suspension would have involved removing the spring pack from the spring perch assembly and would have enabled the state of the spring hanger pin and the spring hanger perch to be examined. I am satisfied that, had the spring hanger pin been examined, it would have been replaced. The failure to service the suspension can be said to have caused or materially contributed to the occurrence of the accident (March v E and HM Stramare Pty Ltd(1990-1991) 171 CLR 506).
83 In relation to the argument that the lack of greasing lead to the fracture of the spring hanger pin, the defendant argued that it was not possible to conclude that a lack of greasing caused the fracture of the pin,
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- as opposed to any one of a number of other causes. Dr Chew's evidence on this point has been set out above at par 43. For the reasons given at par 44 above, an overloading event may be eliminated as a possible cause of the fracture. The remaining hypotheses are inherent defects and operational issues.
84 Greasing is accepted as an important part of preventative maintenance of equipment. The defendant did not attempt to argue that there was no need to grease the spring hanger perch. Mr Apgar pointed out that greasing provides both lubrication, which reduces wear, and displaces moisture, which impedes surface corrosion. The lack of adequate greasing must increase the probabilities that defects leading to a fatigue fracture would occur. On the other hand, Mr Apgar described the probability that a crack could have initiated from a traumatic event or an internal defects as "small". Dr Chew did not address the likelihood of the competing hypotheses, beyond saying that an evaluation of them was not possible. I accept the evidence of Mr Apgar on this point. I am satisfied, on the balance of probabilities, that a lack of greasing caused the inboard pin fracture.
85 The plaintiff also alleged that regular maintenance work would have lead to the discovery of the crack in the spring hanger perch. It was not contended that a mechanic greasing the spring hanger would have been able to see the fracture in the spring pin itself. It was alleged that the mechanic would have been able to see the crack in the spring hanger perch as it progressed from the front outboard corner to the rear inboard corner of the spring hanger perch.
86 The visibility in the spring perch hanger would depends on the size of the crack and the appearance of the surface of spring hanger perch. There was some debate about the size of the crack. Dr Chew initially described the fracture as a hairline fracture but accepted in cross examination that the crack would have become up to a quarter of an inch across. As the crack progressed, the gap at the front of the crack would have become broader. The size of the crack would have depended on the load on the truck. The truck would have been smaller when the truck was unloaded. Presumably, maintenance would have been done on the truck when it was unloaded. The appearance of the spring hanger perch at the time should also be kept in mind. In its original, "operational" state, the spring hanger perch was covered in dust. This would not assist identifying a crack in the perch.
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87 The chances of a mechanic spotting the crack would have been increased if the crack was present for a long time and lessened if the crack had progressed rapidly. However, there was no evidence about how long the crack was present. It was present long enough for the surface to have partially rusted. It appears, however, that rust can occur quite quickly. The plaintiff's case was that the rust on the rear third of the fracture surface of the fragment occurred in the time between the accident and the time Mr Power found it, which was only about 9 days. Although I accept that the spring hanger perch should have been greased, there was no reliable evidence about how frequently grease that should have been applied.
88 All in all, I consider that this aspect of the plaintiff's case is too speculative. I am not satisfied that a mechanic would have observed the crack in the spring hanger perch had there been adequate greasing.
89 I note that in Dr Chew's report of 12 July 2004, he considered the hypothesis that the final failure of the spring hanger occurred when the truck went over the windrow. This hypothesis was also relevant to the question of contributory negligence by the plaintiff. If the spring hanger was not broken before the accident, the accident must have been caused by the negligence of the plaintiff in failing to control an otherwise. However, this hypothesis cannot be maintained in light of the evidence given by Mr Power that he found the fragment in a "spoon" drain on the side of Bindah Road, hundreds of meters before the intersection. There is no evidence to contradict this evidence. It was not put to Mr Power in cross-examination that he found the fragment at or near the intersection. If the fragment was found some distance before the intersection, it cannot have broken going over the windrow on the far side of Mt Weld Road. This hypothesis was also inconsistent with Mr Power's evidence that he heard a loud crack some distance before the intersection. The sound is consistent with the mechanical failure of the truck at that point, rather than when going over the windrow. Dr Chew's final report of 8 February 2006 did not rely on this hypothesis.
Contributory negligence
90 The defendant pleaded that the plaintiff caused or contributed to the accident by his negligent driving. The defendant's particulars of contributory negligence alleged that the plaintiff was speeding, failed to drive the vehicle so that it did not overturn, allowed the vehicle to run out of control and failed to keep any or a proper look out. The argument put on behalf of the defendant appeared to be that I should infer that the
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- plaintiff was speeding, that he delayed applying the brakes until just before the intersection, that he failed to control the truck adequately after a problem developed with the truck or a combination of all three. The argument can also be expressed as follows. If the plaintiff was really travelling at about 75 kilometres per hour at the foot of the incline about 650 metres away from the intersection, a competent driver should have been able to reduce the speed of the truck to a speed at which the truck could safely round the corner by means of the air brake, the gears and the incline. The plaintiff did not get the truck around the corner, so either the plaintiff was not a competent driver, or he was speeding or he delayed slowing until too late.
91 A number of the witnesses at trial were experienced truck drivers – the plaintiff, Mr Williams, Mr Broadbent, Mrs Branch-Smith and a Mr Clampett. Mr Clampett was the emergency officer from a nearby mine, who took Mr Power to Leonora after his accident. All agreed that trucks have three mechanisms for slowing the truck:
(a) Foot brakes (the kind common in cars);
(b) Air brakes; and
(c) The gears of the truck are used to slow the truck. The truck is put into a gear lower than that commonly used at that speed, and the engine then slows the truck down. This process also makes the air brakes more effective.
There was no reference to the use of hand brakes in the evidence.
92 Mr Power agreed that the gears would "ordinarily" have been used. It was not disputed that foot brakes are generally only used for the final stages of breaking, to bring the truck to a complete halt. The rationale for this approach differs between drivers. Some truck drivers eschew foot brakes as a matter of economy, others to preserve their effectiveness. There was no evidence that it was unsafe to use footbrakes.
93 It was also common ground between the witnesses that it would have been possible for the fully laden truck to get round the intersection of Bindah and Mt Weld Road without coming to a complete halt. Mr Power gave evidence that it was possible to travel from the Sun Rise Dam mine site to Leonora in the truck without applying the foot brake until the truck came to the Leonora outskirts. The intersection was only a "give way" junction. There was no stop sign. Mr Power gave evidence that it would have been possible to get round the intersection at about 40 kilometres per hour.
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94 Details of the circumstances of the accident are relevant to this issue. Mr Power’s evidence in chief about the circumstances of the accident is set out at par 21 above. Mr Apgar's report of 3 November 2005 contains extracts from what he described as an undated and unsigned statement by Mr Power. He describes a conversation with Mr Power in which Mr Power confirmed the accuracy of the contents of the statement. The account given of the accident in the statement broadly reflects the sequence of events in the evidence in chief. However, some of the details in the witness statement differ from Mr Power's account of events in examination in chief. In the statement, Mr Power says:
(a) he was probably travelling at about 85 kilometres per hour, prior to the start of the incline;
(b) he first applied the brakes between 400 to 600 metres before the intersection;
(c) he was doing about 65 kilometres per hour when he first applied the brakes;
(d) on the occasion he returned to the scene of the accident, he had parked his car about half a kilometre back from the intersection; and
(e) the fragment was found "lying on the road about 50 metres in front of where I stopped".
95 In cross-examination, Mr Power gave evidence that:
(a) he was "sitting on 80" before the incline; and
(b) he was doing about 70 when he put his foot on the brakes.
96 In his evidence in chief and in his cross-examination he said that he pulled up about 300 to 400 metres back from the intersection when he returned to the scene of the accident.
97 Mr Power initially said that the fragment was 50 meters back from his vehicle. He later changed his estimate of the distance to 20 meters. Still later, he indicated that the distance was twice the width of the court. The width of the court was agreed by counsel at about 5 metres. Mr Power's final estimate of the distance was about 10 metres.
98 The inconsistencies between the details in the statement and the details in the account in Mr Power's oral evidence were not specifically put to Mr Power, although he was cross-examined about the circumstances of the accident. It was not put to Mr Power that the fragment was found at the intersection. I also note that, after the first
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- application of the brakes, Mr Power was having difficulty controlling the truck and was not in a position to make considered estimates of speed and distance. I am not prepared to find that the discrepancies in distances and speed go beyond honest variations in estimates.
99 Even if Mr Power was driving at 85 kilometres per hour at the start of the incline, the only evidence of the truck's speed at the time the breaks were applied was that the truck was travelling less than the speed limit of 80 kilometres per hour. Any early speeding does not appear casually relevant. The plaintiff may, however, have been travelling at a speed that was excessive in all the circumstances at the time the spring hanger failed, even though he was travelling within the applicable speed limit. This amounts to the proposition that the plaintiff started braking too late. This proposition derives its support from two arguments:
(a) The fragment appears to have been found a relatively short distance away from the intersection, perhaps as close as 300 metres back from the intersection; and
(b) The plaintiff applied the brakes, rather than relying on the other brakes, as is more usual. It suggests that there was some urgency to the braking.
100 However:
(a) It does not follow that the fragment was found at the spot where the spring hanger perch failed. It may have taken some short time to dislodge itself from the truck, during which period the truck would have been travelling towards the intersection at 80 kilometres per hour. When the fragment fell from the truck, its momentum would have carried it some distance towards the intersection. It is not possible to estimate how far the fragment's momentum would have carried it.
(b) Also, although the use of foot brakes is eschewed by experienced truck drivers, it is not considered wrong. The defendant did not assert that the use of the foot brakes was unsafe as such.
101 The defendant placed some emphasis on the facts that:
(a) the truck ended up effectively straight through the intersection; and
(b) the truck was found on its left hand side.
The defendant contended that both these facts were inconsistent with the plaintiff's account that he set the truck for the corner and attempted to turn
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- around it and succeeded in getting two thirds the way round the corner. The defendant pointed to photographs of the truck taken after the accident showing the "cow scraper" on the front of the truck. (The "cow scraper" is a small barrier fitted below the larger and more robust bull bar on the front of the truck.) However, the photographs appeared to show that it was the right side of the cow scraper that had received the most impact, which confirms Mr Power's account. Mr Power's evidence was that he could not recall actually hitting the windrow. It is not clear how effective his efforts to straighten up the vehicle were and what impact his steering or the passage over the windrow had on the path of the truck. There was no expert evidence about the likely path the truck might follow in the circumstances described by Mr Power.
102 The matters referred to above are not sufficient to persuade me to that Mr Power drove negligently. In particular, I am not satisfied that Mr Power left braking to a point where it amounted to a failure to exercise reasonable case. In general terms, a driver is entitled to proceed on the basis that the brakes, including the foot brakes on a truck, would operate effectively. I accept that, once the spring hanger perch failed the truck's brakes did not operate effectively and it would have become difficult to control. Further applications of the brakes did not assist, but made matters worse. I also accept that the failure of the spring hanger perch on the suspension lead to difficulties steering the truck. In the circumstances, no adverse inference can be drawn from the fact that the truck did not make the turn and came to rest at a spot straight through the intersection.
Conclusion
103 As indicated above, I consider that:
(a) leave should be granted to the plaintiff to pursue the proceedings;
(b) Swanfire was negligent in its maintenance of the truck and that negligence caused the accident; and
(c) The plaintiff did not cause or contribute to the accident.
104 Judgment should be entered in favour of the plaintiff with damages to be assessed.
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