Primmer v Don Watson Pty Ltd

[2024] VCC 2045

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CI-23-02529

Daryl James Primmer	Plaintiff
v
Don Watson Proprietary Limited	Defendant

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Geelong
DATE OF HEARING:	18 - 28 November 2024
DATE OF JUDGMENT:	18 December 2024
CASE MAY BE CITED AS:	Primmer v Don Watson Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VCC 2045

REASONS FOR JUDGMENT
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Subject:NEGLIGENCE

Catchwords: Interstate truck driver collided with tree while driving  for defendant –  fractured femur and ribs- psychiatric injury – major depressive disorder – plaintiff reported feeling unwell during the journey - whether defendant instructed him to keep driving or failed to stop him driving further – no evidence as to precise cause of accident – contributory negligence – plaintiff not wearing seatbelt – quantum of damages for past and future loss of earnings, pain and suffering – pre-existing and supervening symptomatic unrelated back injury - dependence on sleep medication, anti-depressants

Legislation Cited:      

Cases Cited:

Judgment:  Claim dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Simpson	Shine Lawyers
For the Defendant	Mr R Kumar Ms J Clark	Wisewould Mahony

HER HONOUR:

The proceeding

1This matter proceeded between 18 and 28 November 2024 as a jury trial. Following the final address of Mr Simpson on behalf of the plaintiff on 28 November 2024, counsel for the defendant applied for discharge of the jury without verdict. I acceded to that application in the interests of justice for reasons given at the time, and then proceeded to hear the matter as a cause. Counsel for each party made further final submissions, and I reserved my decision.

Background

2Mr Primmer is a 44 year-old truck driver who has been driving heavy vehicle combination trucks interstate since 2014. He previously worked for the defendant for a few months in 2011 and for six months in 2014.

3By mid-July 2017, he had already twice completed the route taken at the time of the accident that is the subject of this hearing. That is, he would work between Sunday and Friday. On a Sunday afternoon, he would drive from Geelong to the Bacchus Marsh depot where he would leave his car and pick up an allocated prime mover and trailer loaded with frozen meat. He would then drive for 19 hours over 2 days, taking long and short breaks as appropriate, to Brisbane (a distance of approximately 1,880 kilometres) where he would deliver the load. He would then travel to Hemmant, pick up another load from Don Watson’s cold store located there, and travel to Blayney in New South Wales to deliver it. (a distance of approximately 1,039 kilometres).

4The defendant was able to track its trucks with an IAP tracking system. That tracking system identified whether and for how long and where a truck was stationary or moving, the speed of travel, kilometres travelled and fuel consumed.

5The truck being driven by the plaintiff at the relevant time had a camera fitted in the interior of the driver’s cabin which faced the driver and recorded his movements. There was a second camera inside the cabin facing the road ahead. There was a backward facing camera positioned on each of the left and right rear vision mirrors of the truck. None of these cameras produced live feeds which could be viewed by the operations manager while the truck was being driven.

The collision

6On 23 July 2017, the plaintiff picked up his trailer loaded with frozen meat from the defendant’s Bacchus Marsh depot and drove to Brisbane where he completed a delivery. At 1:09am on 26 July, he arrived at Don Watson’s cold store at Hemmant. He had a long break there of 11 hours and 2 minutes, until 12:26pm, loaded his trailer again, and departed Hemmant at 2.36pm, heading to Blayney, New South Wales.  He drove to Goondiwindi where he took a short break of 26 minutes from 7.18 pm.  He left Goondiwindi at 7.53pm and drove to Camurra where he took a short 29 minute break from 9.07pm. He then drove towards Narrabri. He felt unwell as he approached Narrabri.[1] He had a short break there at a truck stop from 10.57pm for 27 minutes. Before leaving Narrabri, he spoke to the night shift operations manager, Paul Thomas. A central issue in the case is what was said by each of them in that conversation. He also spoke to his partner, Jodie Stephenson either at Narrabri or after he left and prior to the accident.

[1] The exact description of the symptoms are disputed and are dealt with below.

7He left Narrabri at 11.24pm, driving along the Newell highway. He was not wearing the seatbelt fitted to his seat. The accident occurred some 40 minutes or so after the conversation between the plaintiff and Mr Thomas.

8At approximately 12:08am on 27 July 2017, his truck left the road, skidded off the left side of the road for a short distance before colliding with a tree.

9During the period prior to the accident, there was data available from the truck’s cameras, and other tracking data concerning the plaintiff’s movements inside the cabin, the truck’s movements on the road, and the various speeds at which he travelled prior to the collision. It is clear from the speed data that there was a short period of deceleration at 12:10am between the speed of 96kph and 0 kph.[2]

[2] Exhibit T, Plaintiff’s Court Book (‘PCB’) 242-257.

10Ten minutes of video footage from within the drivers cabin starting at midnight[3] was shown in court. The first block of five minutes showed the plaintiff driving with one hand on the wheel. At one point, his head fell forward towards the wheel. He is then seen taking his hand off the wheel and reaching to his left to take a drink.

[3] Exhibit 20.

11The second block of five minutes shows the plaintiff’s head nodding, then moving side to side, then falling to the steering wheel.

12The third block of footage is from the camera on the driver’s side mirror, between five and ten minutes past midnight. The camera shows the truck travelling close to the edge of the road, straightening, then crossing into another lane briefly.

13Photographs taken at the scene of the accident show the truck’s cabin stuck on branches of a tree a few metres to the left of the roadside.

14The plaintiff said that he did not recall what he told hospital staff at Tamworth and Coonabarabran Hospitals immediately after and in the few days after the accident.

15The Discharge Summary from Coonabarabran District Hospital dated 27 July 2021[4] noted, inter alia:

SPEED was 100/KH

Lost control

Went to side road & crush

Can not remember the event

Not sure about LOC

GCS15……

[4] Exhibit 1, Defendant’s Supplementary Court Book (‘DCB’) 69.  

16The first page of the Emergency Department Triage Notes at Tamworth Hospital dated 27 July 2017[5] stated:

Truck driver travelling on Newell Hwy

?fell asleep @wheel – he has no memory of the event – truck travelling @100km/hr- left the road, travelled into a ditch + then beyond, hit some tree branches

NOT SEATBELTED

Bystanders report that he was conscious at the scene but unable to self-extricate himself due to painful L thigh…..

….no regular medications…..

….Daryl denies illicit drug use or Ethanol tonight. He took ½ table Panadeine Forte earlier in the evening but states this never makes him tired. He has prescription Tramadol for the chest pain but denies taking any of that recently…..

[5] Exhibit 2, DCB 60.

17The plaintiff agreed that he told police 24 January 2018 of the vehicle “catching the gravel road edge” and of not recalling anything further until he woke up later.[6]

[6] See Exhibit 19, PCB 58.

18He agreed that in his Workers Injury Claim Form dated 1 August 2017,[7] the incident was described in the following terms :

I was driving my truck through the Piligas and the vehicle left the road I don’t actually know how but I think the wheels went in the dirt and I over corrected.

[7] Exhibit U, PCB 42-43.

19He agreed that this form did not mention any illness or loss of consciousness.

20He said he did not recall if he felt alert and fit to drive immediately before the accident. He agreed that if he did not feel alert he should not have kept driving.

21He was shown the video footage taken of him from inside the truck’s cabin in the ten minutes prior to the collision. He said he had not seen the footage before. He agreed that he appeared fatigued on the first block of footage, and that he should have taken a break at that time. He agreed when shown the second block of footage that it showed him almost falling asleep and catching himself. He agreed that this video showed he was fatigued and needed to take a break. He said that he did not stop because there was nowhere safe to stop.

22He was shown the camera footage from the driver’s right side rear vision mirror showing the truck moving laterally to the left of the road, then over the central line of the road. The plaintiff agreed in cross-examination that one reason for the truck’s apparent drifting laterally was fatigue. He agreed that he knew that if he was tired he could stop, take a break, and call operations to let them know. He agreed that he should have done so but insisted that there was nowhere safe to stop. He also agreed that the footage did not reveal any attempt by him to find a spot to stop.

23I note that there was no expert evidence advanced by the plaintiff to explain the occurrence of the accident.

Injuries

24In the collision, the plaintiff suffered injuries including a fractured upper femur/left hip, an injury to the left knee, and rib fractures to 6 right ribs. He was taken by ambulance to Coonabarabran District Hospital, and then by helicopter to Tamworth Hospital. He had surgery to the left femur at Tamworth which involved an open reduction of his fractured femur with internal fixation, with a long nail with a rod and cross bolts into his femur.[8] He then had 3 further surgeries to remove the hardware from the joint.[9] His rib fractures were managed conservatively. His left knee pain was subsequently diagnosed in September 2019[10] as a medial meniscus tear, which was resected by Mr Robert Wood in December 2023.

[8] Transcript of Proceedings (‘T’) 102 L23-27.

[9]  These surgeries occurred on 24 July 2018, 23 July 2019 and 23 December 2019.

[10] See Mr Robert Miller’s report (Exhibit Z) dated 18 March 2024 at PCB 422 where he records the following: “MRI Left Knee – 25 September 2019: Evidence of prior intramedullary nail involving the femoral shaft…Subtle nondisplaced oblique flap tear of the body and posterior horn of the medial meniscus… Mild tendinosis of the distal quadriceps and proximal patellar tendon.”

25As at the date of the trial, the plaintiff continues to suffer left hip pain. He has not required any further treatment for his left hip or leg. His left knee aches, and he cannot kneel. Prior to the accident he enjoyed riding dirt bikes and motor bikes, tinkered with cars, and showed dogs with his partner. He was able to play with his children without restriction. He was also able to do house maintenance and gardening. Since the accident, he had successive periods off work recovering from his surgeries. He remains unable to ride bikes because of the weakness in his left leg and hip. He can no longer help his partner with the dog-showing and they no longer undertake this activity. He can no longer do maintenance around the home or maintain his garden. He cannot run anymore and cannot jump around with his children. He wakes up at night with discomfort. He has been diagnosed with major depressive disorder and has been taking anti-depressants.[11] Although he has been referred a number of times for psychological or psychiatric treatment, he has not engaged with those professionals. He does not have energy and spends the time he is not working at home watching television. He does not like going out or being around people as it makes him anxious. On a good day, he gets out with his family.

[11] In a letter of referral to Barwon Health dated 20 September 2015, the plaintiff’s GP Dr Lew Morris noted he has a history of depression and was taking anti-depressants (Exhibit 12). Dr Nadereh Radhakrishna in her March 2024 report noted that he continues to suffer from depression (Exhibit Y).

26He planned to continue working until retirement at the age of 65 or 67. After his injury he tried to return to work as a truck driver but found that he had to avoid jobs which required him to load and unload trucks. For this reason, since July this year he has resumed full time work as a storeman where he cuts steal to size for customer orders. He claims past loss of earnings of $74,416. He also claims a lump sum of $75,000 in respect of future loss of earnings. He claims $350,000 for his pain and suffering and loss of enjoyment of life.

The issues

27Counsel for the plaintiff argued that the defendant breached its duty to the plaintiff to prevent the foreseeable risk of injury to him, in a number of ways, particularly: failing to provide a safe system of work by directing him to continue driving from Narrabri after he reported being unwell; failing to direct him to stop driving; failing to have any or any adequate driver sickness management plan or system for responding to a complaint of sickness or fatigue; failure to train truck drivers to stop when tired or sick; and failing to adhere to clause 5.2 of the company’s policy.[12] He submitted that these acts or omissions were a cause of the plaintiff’s injury loss and damage. The plaintiff also denies any contributory negligence but says that in the event that he was found to have contributed to his injuries, the responsibility for his injury, loss and damage should be apportioned 10-20% to the plaintiff and 80-90% to the defendant.

[12] See Exhibit J at PCB 156, Clause 5.2 is titled Company Responsibilities, and is found in the Employee Health Policy in the Company Manual. It says “Don Watson Pty Ltd and Management has the legal, moral and social responsibility to ensure that employees do not work whilst suffering from a medical ailment that may inhibit their ability to safely undertake a required task”

28Counsel for the defendant submitted for a number of reasons that the court ought to prefer Mr Thomas’ account of the conversation to that of the plaintiff. If Mr Thomas’ account is accepted, there was no direction to the plaintiff to continue driving, and that particular aspect of negligence fails. In respect of the failure to stop the plaintiff from driving further, the defendant relied on the system of work outlined by the evidence of the defendant’s witnesses, which was unchallenged, and submitted that it was reasonable in all the circumstances for Mr Thomas to leave it to the plaintiff to decide if he wished to have a further, or longer, break, and where to do so. On this basis, the plaintiff’s case would also fail. Finally, in relation to the alleged absence of driver sickness management policies, the defendant relied on the evidence of its witnesses to the effect that such policies did and do exist, but all of them rely on giving the truck driver agency to make the call as to whether, at any time, they are fit to continue driving. For this reason, it was submitted that this aspect of the claim in negligence also fails.

29In any event, the defendant submitted, given the absence of direct evidence as to what caused the accident, the court is not in a position to select one of the many possible competing inferences proffered by the plaintiff as being more likely on the balance of probabilities than any competing inference.[13]

[13]There were a number of possible inferences proposed as a cause of the accident. These include: illness-related loss of consciousness; illness related fatigue; general fatigue; drowsiness due to the ingestion of prescription medication which had not been disclosed to the defendant; or over-correcting the truck after it caught the gravel edge of the road.

30In relation to the pecuniary and pain and suffering impact of Mr Primmer’s accident-related physical and psychological injuries, the defendant submitted that he has received no medical treatment for his hip, knee or ribs for four years, apart from taking over the counter medication, but has received significant medical treatment (including hospital attendances, injections, the use of strong painkilling medications) over the past four years for an unrelated back problem, and that this problem contributes significantly to his work restrictions and loss of amenity.[14]

[14] In this regard, the defendant relied on the medico-legal assessment of Mr Miller, dated 18 March 2024 (Exhibit Z) PCB 418, to the effect that the back injury alone is a cause of his incapacity, and may require surgery.

31In addition, he has suffered from depression for years prior to the accident, for which he had been taking medication, and he continues to take that medication. For these reasons, it was submitted that any award for pain and suffering should be substantially lower than the amount sought by the plaintiff.

32Finally, the defendant says that if it is found to be negligent, the plaintiff failed to take reasonable care for his own safety and is substantially responsible for the injuries he suffered in the accident for a number of reasons. Firstly, he failed to wear his seatbelt, which, according to the expert evidence of Dr Richardson, is specifically designed to restrain drivers in the case of collisions of the force that occurred on 27 July 2017.[15] Secondly, by continuing to drive when he felt unwell in circumstances when he was free to stop driving altogether and/or take any further breaks he needed. Thirdly, by failing to fully disclose to Mr Thomas the impact that his unwellness was having on his driving, that is, if it was making him tired or drowsy or preventing him from concentrating. For this reason, his share of blameworthiness for the injuries suffered should be in the order of 80-90%, and that of the defendant 10-20%.  

[15] T564 L13-16, T565 L27-31.

DUTY OF CARE

33There was no issue that the defendant owed a duty to the plaintiff to take reasonable care to prevent the foreseeable risk of injury to him from undertaking his duties as a certified interstate truck driver.

NEGLIGENCE

The defendant’s system of work

34The plaintiff alleged that the defendant failed to provide a safe system of work for the plaintiff, in particular by allegedly requiring him to continue driving despite feeling unwell; and that the defendant’s system of work was defective in failing to devise, implement and maintain a driver sickness management system.

35The evidence concerning the defendant’s system of work, as well as the circumstances of the investigation of the accident came from three witnesses; Lyndon Watson, Adam Mayhew and Paul Thomas.

Lyndon Watson

36Mr Lyndon Watson, Chief Executive Officer of Don Watson Pty Ltd, described the company’s policies and systems in relation to driver fatigue, sickness management, and disclosure of medical conditions and medications.

37Mr Watson said that a fatigue management system is critical to the operation of  a long-haul trucking company because “the safe operation of heavy vehicles comes down to the fatigue management of those drivers.”[16] He said that the defendant complies with the requirements of the Heavy Duty National Law (“HDNL”) and has a further accreditation called Basic Fatigue Management (“BFM”) which was obtained through the National Heavy Vehicle Regulator (“NHVR”). This further accreditation allows for more flexibility with fatigue arrangements if a company demonstrates a high level of training in this area. The BFM looks at all of the factors associated with fatigue, which include driver illness, and not just lack of sleep.[17] It also deals with driver sickness management. [18] He said that Mr Primmer was BFM accredited.[19] He said that the defendant is independently audited every two years to ensure compliance with the BFM.[20]

[16] T422 L20-21.

[17] T425 L7-18.

[18] T456 L17-23.

[19] T426 L6-8.

[20] T422 L23-31, T423 L1-5, T423 L21-31, T424 L1-7.

38Mr Watson said that under the HVNL drivers have a requirement to be fit and able to undertake their task safely. They have to sign off on that each day. The defendant ensures the requirement is fulfilled through its policy of drivers undergoing regular medical examinations.[21]

[21] T425 L21-31, T426 L1.

39Mr Watson said that wherever there is tension between fatigue management for drivers and the delivery of freight on time, fatigue management will take priority. He said that the defendant’s scheduling program allows for flexible rescheduling so there was no problem if a driver stopped driving due to fatigue.[22]

[22] T426 L9-28.

40He said that the BFM program and the Company Manual deals with driver fatigue and illness, and that although the interstate driver induction booklet does not use the word “sickness”, the fatigue training modules included illness management and how it affects fatigue.[23] Mr Watson said that all of the company’s manuals had been independently assessed and accredited through an independent auditor (TruckSafe). The BFM program has also been independently audited. Neither auditing companies had indicated any deficiencies in the defendant’s manuals.[24]

[23] T456 L4-12.

[24] T486 L1-9, T491 L21-23.

41Mr Watson said that new employees must list medications on their medical form. Drivers of a certain age must repeat their medical examinations yearly whilst younger drivers must do them every three years. The results of the medical examinations are reviewed by Mr Watson and Mr Mayhew for compliance and fatigue management purposes.[25]

[25] T420 L25-31, T421 L1-4.

42If a driver discloses that they are taking sleeping tablets, Mr Watson would seek  more information about how this medication is taken (whether during work hours, outside-of-work hours, at night, or during the day) and what factors lead them to be taken. He would also check the medical examination results to ensure that the doctor has provided unconditional clearance for driving a heavy vehicle whilst the driver is on this medication.[26]

[26] T421 L5-31.

43He said that he believed that if the plaintiff had told operations that he was driving  under the effects of Panadeine Forte or Tramadol, operations would have told him to not drive the truck.[27] He said that if a driver said they were too tired or too sick to drive, the company would not require them to keep driving.

[27] T434 L11-25.

44Mr Watson spoke to Mr Thomas on the evening of the accident,[28] and conducted most of the internal investigation into it.[29] Mr Watson did not speak to the plaintiff as he was injured and off work. He said that on Mr Thomas’ account of the conversation with the plaintiff, Mr Thomas acted appropriately in telling the plaintiff he was free to stop at any time and rest if he felt unwell and to keep him informed.[30] 

[28] T 417 L13, T511 L15-31.

[29] See Exhibit E, PCB 260.

[30] T444 L15-28.

45Mr Watson said that through their BFM training, the drivers have the responsibility for making a reasonable and correct decision on their fitness and ability to do the task, and that such decision cannot be left in the hands of the operations staff.  He said that it was only where a driver sounded incoherent or said that they were being overcome by fatigue that he or Mr Thomas would direct a driver to stop driving.[31] Mr Watson said that if a driver said they were unfit to keep driving, they would never be directed to continue driving. However, a driver might be directed to move a truck forwards to avoid collision with a train, or, if they stopped on the side of a freeway to call operations, they would be directed to move to a safe location away from a freeway and call from there.[32] 

[31] T429 L8-16.

[32] T433 L1-18.

46Mr Watson said that, provided they take a minimum number of mandated breaks,  a driver is free to take additional breaks as and when they choose. [33] He said that any unscheduled breaks may result in the delivery being rescheduled but this would not be an issue. [34] He said that even a break as long as 24 hours can be worked around, if an employee has health problems or a truck breaks down.[35] This is particularly the case where the load comprises frozen goods, where deliveries are not time-sensitive.[36] He said that rescheduling deliveries happens daily and is part of the industry.[37] He said that drivers are able to take breaks without notifying operations first, although it is recommended that a courtesy call is made so that the operations team do not wake them up if they are sleeping. Mr Watson said that an indication by the plaintiff that he was not able to make it to Blayney without a further break was a common occurrence in the long-haul industry, and not a red-flag requiring direction that he stop driving.[38]

[33] T429 L17-25, T430/5-29.

[34] T431 L5-7.

[35] T431 L14-27.

[36] T432 L24-28.

[37] T432 L5-14.

[38] T442 L14-23.

47Mr Watson said that after the accident, the defendant investigated the incident, reported the results to police along with all their data, and reviewed their risk assessments and policies. External auditors from the Roads and Maritime Services (RMS) and National Heavy Vehicle Accreditation Scheme (NHVAS) also investigated the incident and made no adverse findings.[39] Mr Watson said that the plaintiff was not contacted after the accident because the emphasis was on his rehabilitation and return to work. He was never disciplined. Any retraining which needed to occur would occur upon a return to work.

Adam Mayhew

[39] T438 L17-25.

48Mr Adam Mayhew has been employed by the defendant for 15 years. In 2014 he was a compliance manager and in 2015 he took on an additional role as administration manager. He continued in these roles until early 2023 when he became the Chief Information Officer, and he is now a general manager. He has always reported to Lyndon Watson. He was involved in the induction of most drivers between 2012 and 2018, and conducted the plaintiff’s induction in 2014 and 2017. Mr Mayhew said the first induction took between 2 and 4 hours and involved the employee first reading the company manual. After that, the employee was taken through the interstate driver booklet, page by page. He said drivers were instructed to ring their operations department, which is open 24 hours per day, if any problem occurred.

49Mr Mayhew said that none of the documentation provided by the plaintiff to the company disclosed that he was taking any prescription medications. He said that if while being inducted, the plaintiff had told him he was taking Panadeine Forte, Tramadol or sleeping tablets, or any medication that interferes with concentration, he would have asked the plaintiff to provide a doctor’s letter stating that it was safe for the plaintiff to drive on that medication. He said that an applicant was required to disclose criminal convictions on their application form, and that, if they did not do so, but disclosed these matters to him during their induction, he would invite the employee to amend their application form and would send it to management for review.      

50He said that drivers were required each day to sign a “fitness to drive” document before starting to drive. This document indicates their fitness to do the tasks ahead, their understanding of the tasks to be performed; confirms that they have had the minimum required rest breaks, that they are not feeling fatigued and that they are not under the influence of drugs or alcohol.[40]

[40]T541 L20-27.

51He said that interstate drivers were required to take the minimum required number of breaks under the standard fatigue or BFM accreditation systems and could take any extra breaks they needed without notifying operations.[41] He said that it was preferable for drivers to notify operations if they stopped for an extra break so that drivers were not interrupted if they were sleeping, as the policy was to do a welfare check on any vehicle stopped for more than an hour. If the driver wanted to take a long break that was not scheduled, they could do so but were asked to notify operations so that if necessary other arrangements could be made with the freight.[42]

[41] T542 L13-24.

[42] T543 L28-31 – T544 L1-2.

52After the plaintiff’s accident, Mr Mayhew completed an Incident/Injury Report dated 28 July 2017 which noted that “Daryl wasn’t feeling well. May have fallen asleep” and “Daryl lost control of truck, it drifted off the road into trees”.[43] It noted the plaintiff’s injuries as “broken left femur & ribs”.[44] He said that this document was for internal purposes only and agreed it was not comprehensive. He agreed that he provided Mr Watson with the relevant data and documentation to enable Mr Watson to conduct an internal investigation.[45]

Paul Thomas

[43] Exhibit 18 PCB 258-259.

[44] PCB 258.

[45] See Summary of Internal Investigation, dated 3 August 2017 Exhibit 17

53Mr Paul Thomas worked as a truck driver for five to ten years before joining the defendant in 2014 as a long haul driver. He became the night shift operations manager in 2016. Before becoming a night shift operations manager he had six months of training on the job, sitting with the then supervisor. He also completed the accreditation required to enable him to allocate work. He ceased working for the defendant a few days before giving his evidence, and has taken up a position with another trucking company.

54He described the system of work for his role as night shift operations manager with the defendant. He would work alone. There would be between 80 to 100 drivers out on the road at that time. He had access to tracking data that could track the location of trucks, and whether they were moving or stationary. He could also check the temperature of the trailers they were driving. He said that drivers did not call him for direction, guidance or approval, but rather to inform him of what they were doing in terms of breaks, break-downs and so on.

55He did not have access to any of the material recorded by the truck’s four cameras. He did not need to call drivers. They would call in from time to time for different reasons. If they had a breakdown or a tyre blowout, he would send assistance to them. If a truck was stationary on the road  for more than one hour, but the driver had not informed Mr Thomas they were taking a long break, he would call them to do a welfare check. He had no role in determining the breaks taken by drivers nor in approving their breaks. They were required to take the minimum number of breaks set out in their Safe Driving Plan, but could take more as they required. If they were taking a long break they would call in to let him know not to disturb them, or with a request that he wake them at a certain time. He said that there was no problem if a driver taking an additional long break. He said it was common for deliveries to be delayed due to the driver taking additional breaks, and if this happened, he would call the receiving company to inform them. He said that there was no urgency involved in the delivery of frozen loads, such as that being carried by the plaintiff on the day of the accident.

56He said he had not been trained in driver sickness management.

57Mr Thomas said that if a driver told him he was tired and was having trouble concentrating, or wanted to see a doctor, or was taking medication that could cause drowsiness, he was required to tell them to wait where they were while he obtained directions from management.

58Mr Thomas said it was not his role as night shift operations manager to decide if drivers should stop, or drive on – that was a matter for drivers and/or management. Drivers were always free to stop, to rest or sleep. 

59Mr Thomas said he had never directed a driver to keep driving, that he did not direct the plaintiff to keep driving, and would never do so.[46] He said the only circumstances in which he would direct a driver to stop is if they reported fatigue or poor concentration, or he received complaints from other drivers that the truck was weaving across the road.[47] In those circumstances, he would direct a driver to take a rest. In any circumstances where he was unsure of what to do, he would inform management and seek direction from them.

[46] T526 L16-20, T515 L10-14.

[47] T515 L22-27.

60He said he would not know if a driver was taking prescription medication but if the driver told him this was the case, he would ascertain the nature of the medication and obtain directions from management. welfare

The plaintiff’s conversation with Mr Thomas

The plaintiff

61In his evidence in chief the plaintiff said he rang Mr Thomas after having spoken to his partner, Jodie Stephenson.[48] He said he usually got home on a Friday and called her to let her know he may take an extra day.[49] He said that whether he stopped at Narrabri, Coonabarabran or Dubbo, he would still, once at Blayney, be 12 hours away from home and was concerned on his welfare “and how they were going to get me home.”[50]

[48] T95 L16-20.

[49] T94 L6-8.

[50] T308 L12-16.

62He said he told Mr Thomas he was feeling unwell, with a chest cold, body aches and fevers; that he did not know how far he could continue and did not think he would get to Blayney. He asked if it was ok for him to stop for the night at the truck stop in Narrabri. Mr Thomas told him that the load needed to be delivered to Blayney in the morning, and invited him to take a 15 minute break if he needed to, and to speak to him later. The plaintiff said he thought he would “push on to the next town”, but knew that he would not be able to contact Mr Thomas again until he reached Coonabarabran, some 120 kilometres away.[51] He said that he did not feel tired, but felt “really really crook” and could not get comfortable; he was restless, hot and cold and shivering.[52] He said that he could not pull over on the Newell Highway. He felt he “blacked out”.[53]

[51] T96 L21-22 , T97 L2-7.

[52] T98 L2-3, L18-20.

[53] T98 L10-11.

63In cross-examination, the plaintiff agreed that his memory of the events in question was not so good and he agreed that he did not recall specifically what he told Mr Thomas when he rang him.[54] He agreed that he did not tell Mr Thomas that he was tired or fatigued or having trouble concentrating. He agreed he told the jury that he was not tired. He agreed that he did not recall what happened immediately before the collision, and that he did not recall what he told hospital staff at Coonabarabran and Tamworth about the accident. He agreed that some guesswork was involved[55] in trying to piece his recollection together, and that this was done partly from his paperwork, that is, his email to Mr Watson on 21 September 2017 some three months after the accident,[56] in which he stated, among other things:

Hi Lyndon I was not told to pull over and go to sleep I was told too keep driving and get as close to Blayney cold store as possible…..[57]

[54] T306 L3-5, T310 L19-24.

[55] T212 L24-25.

[56] T306 L10-13, L27-28.

[57]Exhibit D, PCB 53.

64The plaintiff agreed that logically it did not matter where he stopped before Blayney, whether at Narrabri or Dubbo. Later in cross-examination he agreed that he had no specific recollection of being told by Mr Thomas that the load had to be delivered in the morning, but could not explain why he had said in his evidence in chief that Mr Thomas told him this. At one point in cross-examination, the plaintiff  alleged that Mr Thomas told him to get as close to Blayney as possible and have his long break there.[58] At another point in cross examination, he insisted that he told Mr Thomas he wanted to take his long break in Narrabri – although this was not alleged in his evidence in chief. He later said that Mr Thomas never told him he could not take a long break in Narrabri, and did not tell him where to take his break.[59]

[58] T316 L29-30.

[59] T317 L6-7, 14-17.

65The plaintiff was taken to his Answers to Interrogatories sworn 19 April 2024[60] where he stated:

In answer to interrogatory 3(c):

I am unable to remember precisely what time I made the call or the duration of the call. I informed Paul Thomas that I was feeling sick with symptoms of a chest cold and felt that I needed to take my longer break early. Paul told me to take my longer break closer to Blayney.

[60] Exhibit 16, PCB 25-28.

In answer to interrogatory 4:

I was feeling sick and wanted to take my longer break, so I called Paul Thomas for instruction. After speaking to Paul I felt that I was required to continue driving and get closer to Blayney.

66The plaintiff insisted that Mr Thomas told him to keep driving and take his break closer to Blayney. He denied that it was his decision to drive on a little further to see how he felt.[61] He said that he felt he had to keep driving because “I wasn’t provided with any other options or a safe plan to get me home if I was unable to drive again the next day.”[62]

[61] T296 L25-27.

[62] T370 L31-T371 L1-4.

67He agreed that he did not tell New South Wales Police in January 2018 when they investigated the incident, that he was unwell or that Mr Thomas told him to keep driving.[63]

[63] See police summary, Exhibit 19, PCB 58.

68He agreed that there was no mention of the conversation with Mr Thomas in the hospital notes dated 27 July 2017,[64] nor later in the Workers Injury claim form dated 1 August 2017.[65]

Jodie Stephenson

[64] Exhibits 1, 2 and 3, DCB 57, 60, 66-70.

[65] Exhibit U, PCB 42-43.

69Ms Stephenson said that she thought the plaintiff was better on 23 July 2017 in that he did not have the hot and cold sweats anymore. She spoke to him a few times during the evening of 26 July while he was driving. During one call, he told her he was feeling unwell. During a later call he said he felt his chest infection was returning. She asked him if he could stop at a pharmacy and buy some Panadol. He told her he rang his shift manager, told him he was unwell, but was told to get as close to the next stop as possible. She said she asked him if he felt up to it, and he said “Yeah, well it’s a plan.”[66] She said “like we just felt comfortable because it was a plan, like moving forward that we needed to stop or wherever he was going, and get him home.”[67]

[66] DN!

[67] T377 L27-31.

70In cross-examination, she insisted that she had multiple conversations with him during the evening, and discussed his health more than once, with the last conversation occurring around 11.45 pm. She was certain that this was after he had spoken to the night shift operations manager. She agreed that she had discussed these calls with the plaintiff many times in the past few years and that this might have influenced her recollection.

Paul Thomas

71Mr Thomas said that the plaintiff rang him from Narrabri and said he was not feeling well and had hot and cold flushes. He told the plaintiff not to push himself, to see how he went and to let him know if he needed to stop. Mr Thomas said that he had no reason to believe that the plaintiff was not safe to drive. He denied putting the plaintiff under any pressure to drive.[68] Mr Thomas said that if the plaintiff had wanted to take a further break at Narrabri he could have done so. He denied telling the plaintiff to get as close as possible to Blayney. Rather, he understood from their conversation that the plaintiff might stop before Blayney. Mr Thomas said that there was no urgency with the plaintiff’s load, which contained frozen meat, which could be delivered any time of the day to the cold stores at Blayney, where there were no fixed delivery time slots. Mr Thomas said after the conversation he put the plaintiff’s truck on his watchlist – which enabled him to see whether and for how long the plaintiff stopped after Narrabri. Any unscheduled stop longer than one hour would prompt him to do a welfare check on the plaintiff as would be the case with any other driver.

[68] T515 L18-19.

72In this case, he said that if the plaintiff had told him he was taking Panadeine Forte, which Mr Thomas knew was associated with drowsiness, he would have asked him to stay put until Mr Thomas obtained directions from management.

73In cross-examination, Mr Thomas denied that the plaintiff told him that he had chest pain or body aches.[69] He said that after the plaintiff told him about the hot and cold flushes and thinking that he would not make the full journey to Blayney, he (Mr Thomas) understood that the plaintiff might stop prior to getting to Blayney. Mr Thomas said the plaintiff did not tell him he was not going to continue driving. He denied that the plaintiff asked him if he could stop at the truck stop in Narrabri overnight. He said that the plaintiff did not say he could not continue, just that he could not make the whole journey to Blayney. Mr Thomas said he had no reason to ask more questions about the plaintiff’s health, but simply asked the plaintiff to call from Dubbo if he made it that far because Mr Thomas knew that the telephone signal would be better by then. He said he had never told a driver they could not stop, or to keep driving. He said he had no reason to believe that the plaintiff was at risk of serious harm if he continued to drive.

[69]T525 L7-15.

74He denied telling the plaintiff that “the load needs to be delivered in the morning”. Mr Thomas said that if delivery of a load would be delayed by a driver taking an extra break, he would notify the customer of a potential delay in delivery and leave a note for the day shift allocators to follow up the next day.

75In re-examination, Mr Thomas insisted that he had no authority to tell drivers how many breaks they could take, when or where to take their breaks or how long to take them for. He said he was not aware that driver sickness management was a part of the BFM training program. He said that on night shift he would be busy in terms of receiving calls prior to 10:00pm, but that after that, the number of calls to him would die down.

Lyndon Watson

76Mr Watson said he spoke to Mr Thomas on the day of the accident.[70]  Mr Watson understood from Mr Thomas that the plaintiff was coherent, speaking reasonably well and told him that he was unwell but fine to continue to drive.[71] Mr Watson understood that Mr Thomas heard the plaintiff speak about his symptoms, told him he was free to stop at any time and rest if he felt unwell, and to keep him informed.

Findings on breach of duty

[70] T417 L13-17.

[71] T428 L8-12.

77I accept that the plaintiff is a man of limited education and few words who suffers from anxiety and depression and may have found the court process very trying.

78However, in the light of all of the evidence before me, I found his evidence in relation to his conversation with Mr Thomas to be unreliable for a number of reasons. Firstly and most importantly, he admitted that his memory of the precise content of the conversation was poor. It is therefore unsurprising that he gave slightly different accounts of the conversation at various points in cross-examination.

79Moreover, there were several unsatisfactory aspects of some of his evidence. For example, he admitted dishonestly omitting from his application forms details of his prior criminal convictions as well as the medications he was taking for sleeping problems, anxiety and depression. In relation to the prior convictions, I note that  the plaintiff alleged in his evidence that when inducting him, Mr Mayhew told him to tick “no” to the question about prior convictions because the convictions were not important as they did not relate to driving. I note that in his evidence in chief  Mr Mayhew adamantly denied saying this to the plaintiff, and he was not challenged on this point.[72]

[72] T548 L13-27.

80Another example is that the plaintiff was very guarded when answering questions about his use of prescription medications, including Tramadol, Zoplicone and Panadeine Forte, during the course of the road trip on which the accident occurred. The Tamworth Hospital notes recorded a history of his taking half a tablet of Panadeine Forte at some time prior to the accident. The plaintiff was adamant that the drug did not make him tired, but agreed when viewing the extracts of the video footage from the camera inside the cabin that he appeared fatigued and that his head dropped forward a few times.

81A further example relates to the evidence he gave concerning his knowledge of the requirement to wear seatbelts when driving a truck. At first he denied knowing that seat belts were required to be worn by truck drivers and said that he thought “it was like if you’re on the bus and you don’t wear a seatbelt.”[73] He said he had never worn one when driving trucks. Later in cross-examination he agreed he knew he was required to wear it when driving a truck but said he found it uncomfortable and so did not wear it.

[73] T162/1-2.

82Secondly, I note that the evidence of the defendant’s witnesses concerning the system of work was unchallenged, particularly that part of the system which required drivers to ascertain and document at the start of each day their fitness to drive and their complete freedom, at any time thereafter, to stop driving (whether for a short or extended break, or altogether in the case of breakdown or illness), so long as they notified operations of their intentions. I consider that this system of work makes it less likely that the plaintiff’s account of the conversation with Mr Thomas is correct.

83Thirdly, I found Mr Thomas to be a credible and reliable witness. He is no longer employed by the defendant. He gave direct and forthright evidence, both of the system of work adopted by the defendant, his role as night shift operations manager, the extent of his authority, and of his conversation with the plaintiff. I prefer his account of the conversation with the plaintiff to that of the plaintiff.

84I am therefore not satisfied that the defendant directed the plaintiff to keep driving.

85Having accepted Mr Thomas’ account of the conversation with the plaintiff, I consider that it was reasonable for Mr Thomas, knowing only that the plaintiff felt unwell and may take a further break, to invite him to do so, and to keep him (Mr Thomas) informed, and to leave the plaintiff to decide whether he continued to be fit to drive.

86I am therefore not satisfied that the defendant, through Mr Thomas, acted unreasonably or ought to have acted differently.

87I consider that there was ample evidence from the defendant of the existence of policies requiring drivers to be fit for work, to undergo medical assessments, to take breaks beyond the minimum required breaks as and when needed, and to stop and notify operations in circumstances where, either through mechanical breakdown or fatigue or illness, they were unable to continue driving.[74] I am also satisfied by the evidence of Mr Watson that drivers received sickness training when undertaking their BFM training.

[74] See for example Exhibit H, Safe Driving Plan, Exhibit M, Don Watson Pty Ltd Health Assessment for Fitness to Drive dated 26 June 2014, Exhibit Q, Basic Fatigue Management table, Exhibit 10, Driver Induction Manual, Exhibit 15 Company Manual dated 23 June 2017.

88In these circumstances I am not satisfied that the defendant failed to devise, implement or maintain a policy of driver sickness management and I am also not satisfied that there was any breach of clause 5.2 of the Employee Health Policy.

89It follows from the above that the plaintiff has failed to establish that the defendant breached the duty owed to him.

90

Findings on causation

91For the sake of completeness, I note that in his final submissions, counsel for the plaintiff relied on the temporal connection between the conversation with Mr Thomas, the symptoms reported to him by the plaintiff (including the alleged blackout he suffered at the wheel), and the accident as creating a causal connection between the alleged failure to stop the plaintiff from driving further or the alleged direction that he continue driving, and the occurrence of the accident and consequential injuries, loss and damage.

92There was no medical evidence concerning any loss of consciousness, whether due to fatigue, medical episode or through falling asleep. There was no direct, indirect or expert evidence establishing the cause of the accident. A number of possible inferences arise from the evidence before me, including that the accident was caused by fatigue, or by illness-related fatigue, or by a medical episode, or by loss of control after catching the gravel on the side of the road, or by driver error.

93I note that Dr Richardson’s evidence was to the effect that if the plaintiff had been wearing his seatbelt he would not have suffered the injuries of the kind he suffered, but would likely have suffered no injury or only minor injury.[75]  

[75] T565 L27-31.

94I have already indicated above my acceptance of Mr Thomas’ version of the conversation with the plaintiff at Narrabri. Given the paucity of evidence concerning the precise cause of the accident, I am unable to find any one of the above inferences more likely on the balance of probabilities than each of the other possible inferences. For this reason, I am not satisfied that the plaintiff has discharged his onus to establish this aspect of his claim in negligence. 

CONCLUSION

95The plaintiff’s claim is dismissed. I reserve the question of costs.