State of Tasmania v Hammersley
[2014] TASSC 15
•21 March 2014
[2014] TASSC 15
COURT: SUPREME COURT OF TASMANIA
CITATION: State of Tasmania v Hammersley [2014] TASSC 15
PARTIES: STATE OF TASMANIA
v
HAMMERSLEY, Andrew John
KELLARA TRANSPORT PTY LTD
NATIONAL TRANSPORT INSURANCE
FILE NO: 446/2009
DELIVERED ON: 21 March 2014
DELIVERED AT: Hobart
HEARING DATES: 22, 23 and 24 May 2013
JUDGMENT OF: Tennent J
CATCHWORDS:
Torts – Negligence – General matters – Prime mover with trailer loaded with excavator hit and damaged railway overpass – Whether acts or omissions by truck driver amounted to negligence.
Vehicle and Traffic Act 1999 (Tas).
Vehicle and Traffic (Vehicle Operations) Regulations 2001 (Tas), Pt 6.
Aust Dig Torts [19]
Insurance – The policy – Conditions, warranties and exemptions – Exclusion clause – Claim by truck owner to be indemnified for loss as result of accident – Whether insurer liable to indemnify insured – Insured's obligation to comply with various statutory obligations – Overloading of vehicle – Whether overloading accidental.
Australian Casualty Co v Frederico (1986) 160 CLR 513, referred to.
Vehicle and Traffic (Vehicle Operations) Regulations 2001 (Tas), regs16, 50, 54, 57.
Aust Dig Insurance [1014]
REPRESENTATION:
Counsel:
Plaintiff: P Turner
First Defendant: P Jackson
Second Defendant: P Jackson
Third Party: B McTaggart SC
Solicitors:
Plaintiff: Director of Public Prosecutions
First Defendant: Hunt & Hunt
Second Defendant: Hunt & Hunt
Third Party: Page Seager
Judgment Number: [2014] TASSC 15
Number of paragraphs: 73
Serial No 15/2014
File No 446/2009
STATE OF TASMANIA v ANDREW HAMMERSLEY,
KELLARA TRANSPORT PTY LTD,
NATIONAL TRANSPORT INSURANCE
REASONS FOR JUDGMENT TENNENT J
21 March 2014
These reasons arise out of an action in which the plaintiff seeks damages for negligence which it asserts resulted in damage to its property, and in which the defendants, if they are found liable, seek to be indemnified for any damages by the third party. The Court is only required to deal with the issue of liability
At about 3.30pm on 1 July 2008, the first defendant, Andrew Hammersley ("Hammersley") was driving a prime mover with a trailer attached along the East Tamar Highway towards Rocherlea. Loaded on the trailer was a Caterpillar excavator. At the time, Hammersley was employed by the second defendant, Kellara Transport Pty Ltd ("Kellara"). Hammersley attempted to drive the prime mover under a railway overpass. When he did so, the excavator collided with the overpass causing damage. The plaintiff, the State of Tasmania, was the owner of that overpass.
The plaintiff sued the defendants in negligence to recover the cost of the damage to the overpass. Both defendants denied that the collision was as a result of any negligence on their part. At the time of the collision, Kellara was insured by the third party, National Transport Insurance ("the Insurer"). Kellara called on the Insurer to indemnify it in respect of any damages it might be ordered to pay. The Insurer refused to accept it had an obligation to indemnify, and third party proceedings were commenced. Kellara alleged a breach of its contract of insurance with the Insurer. That was denied.
A determination only needs to be made in the third party proceedings if the plaintiff succeeds in its claim against the defendants.
As to the claim by the plaintiff, its counsel submitted that, as a road user, Hammersley owed a duty to the State to take reasonable care to avoid damage to the State's property, that is the overpass. Further, as Hammersley's employer, Kellara was vicariously liable for any breach by Hammersley of his duty of care. The State submitted Hammersley had breached his duty of care in that he:
(a) caused the trailer to go under the overpass when the height of the excavator exceeded the lowest point of the overpass;
(b) failed to check properly or at all or otherwise ensure that the overall height of the excavator was less than the lowest point of the railway overpass;
(c) failed to heed that the lowest point of the railway overpass was less than the height of the excavator on the trailer.
The State submitted that the evidence supported findings that all the particulars of negligence had been made out. In the alternative, the doctrine of res ipsa loquiter applied.
Counsel for the defendant submitted that the doctrine of res ipsa loquiter did not apply in the circumstances of this case, and that the particulars of negligence as asserted by the State had not been made out.
Background to the collision
Hammersley was aged 46 at the time of the collision. He had extensive experience as a driver of heavy vehicles with various trailers, having been doing that for various employers in Australia and New Zealand since he was about 15. In June or July 2007, after living in New Zealand for some years, he returned to Tasmania and obtained work with Kellara as a truck driver. He had driven the type of prime mover and trailer, or float as he called it, that he drove in July 2008, before, both for Kellara and at other times. He had also driven that type of rig loaded with excavation equipment. He had never had an accident while driving vehicles of this type.
Kellara operated six or seven prime movers. It also had two floats, one small and one large, and about eight or nine trailers. The particular combination of prime mover and float that Hammersley was driving on the day of the collision did not always operate together, nor did Hammersley drive the same prime mover and float all the time. He simply drove whatever was assigned to him. In the time he was with Kellara prior to the collision, he carted heavy machinery which included excavators as he did that day. He was familiar with the East Tamar Highway and had driven along there regularly. He was familiar with the railway overpass he collided with, and had driven under it numerous times, including with heavy machinery on the float. Hammersley was aware the overpass had a height restriction sign on it. His counsel actually asked him if he was aware that the height restriction was 5.3 metres and he agreed he was so aware (that is in circumstances where the height restriction was in fact 5.2 metres).
On the morning of 1 July 2008, Hammersley received a telephone call from the Kellara dispatcher. He was instructed to be at the Kellara yard about lunchtime. He was to take a prime mover and trailer to Temco at Bell Bay to collect a Caterpillar rental excavator and take it back to CAT rentals in Launceston. He was not told anything else about the job. He knew the route he would have to take. He drove to the Bell Bay site as instructed, driving a Mack prime mover. Attached to it was a quad axle low loader float or trailer, bearing registration number QT7777. On arrival at the Temco site, Hammersley was directed to where the Caterpillar 320C excavator was. An operator of that excavator then loaded it onto the float. The operator then took Hammersley to another part of the site where the operator loaded extra buckets and other equipment onto the float. Hammersley had to back his rig down into what he described as a mud hole so that the extra equipment could be loaded. After that was done, he said he drove back out onto the bitumen. There he chained everything down and measured the height of his load.
Hammersley said he was aware the trailer had an oversize permit. He did not check to see if the permit was in the truck before he began his journey. He said he thought that the permit allowed for a height of 4.9 metres and a width of 3.25 metres. He seemed to think there was some tolerance in that height figure, but gave no clear evidence about what he thought that might be, or on what basis it existed.
After chaining and measuring his load, Hammersley drove out of the Temco site and commenced his journey. The journey was uneventful until he collided with the East Arm overpass not long after.
Load height
On the day of the collision, what was loaded onto the trailer was the Caterpillar 320C excavator with a bucket attached to the stick, two extra buckets, a rock breaker and other miscellaneous small pieces of equipment. The product information sheet for the excavator (exhibit P2) at page 26, contained an illustration of a Caterpillar 320C excavator with numbers on it. Underneath the illustration, the numbers were listed with a description of what each part identified by a number was called. A copy of that illustration is annexure A to this judgment. At page 30, there was an illustration showing how such an excavator should usually be transported. A copy of that illustration is annexure B to this judgment. Hammersley acknowledged that illustration B showed the standard manner of transportation for this type of excavator, although he said the stick was not usually tucked under quite as far. However, he agreed that, in the usual transportation position, the boom would be lower than, or at the same height as, the cab.
Table 4, in exhibit P2 on page 31, set out specifications for the excavator. By reference to illustration B, it provided that the overall height of the excavator (not the load from the ground), if transported in the manner set out in the illustration, would be 3.010 metres. Its overall width was shown as being 2.8 metres.
On 1 July 2008, the excavator was not being transported in the manner shown in the illustration which is annexure B. Hammersley said that it was being transported in a manner similar to that shown in photograph 8 in a bundle of photographs which were exhibit P1. The difference between the two methods of transportation was that, on 1 July 2008, the stick with the bucket attached was not tucked under the boom at all, but rather extended out. Hammersley believed that this was the first time he had taken an excavator on that highway not in the transportation position shown in the illustration.
Hammersley explained to the Court how he measured the height of his load before leaving the Temco site. He said he stood about six to eight metres back from the truck to assess the highest part of the boom. He then used his tape measure, the one provided with the prime mover, which he said was an eight metre tape, and measured from that highest point down to the deck of the float and then from the deck to the ground. He identified, by reference to photograph 8, where the high point, he identified as being from which he measured, was. He said this was "off the side of one of the highest hoses that was sticking up in the air". The hoses he referred to are shown just below the number 16 on the illustration which is annexure A to this judgment. Hammersley said that, when he measured from the point on the top to the deck of the trailer, he got a measurement of about 3.5 metres. When he measured the distance from the deck of the trailer to the ground, his measurement was 923 to 925 millimetres. He said he added the two together and got 4.5 metres.
The float or trailer had airbag suspension. The air could be released thus lowering the float by using a lever on the side. The airbags would usually be inflated while the rig was in motion but deflated while the trailer was being loaded. The width of the float could also be altered to accommodate a load. It could however only be adjusted to fixed widths, not to suit a particular width. Hammersley explained that, when he was measuring the height of his rig, he had forgotten to put air back in the airbags after loading. He reinflated the airbags, and then measured the distance between the deck and the ground again. He initially spoke of adding 250 millimetres to his initial calculation to accommodate the difference made by reinflating the airbags. However, under cross-examination, he said that, when a trailer was unladen, the reinflation of the airbags would bring the height of the trailer deck up by 250 millimetres, but when it was laden, it would only come up between 175 and 180 millimetres. He also said that, when he first measured the distance from the trailer deck to the ground, the measurement was "750 or something", and when he measured again after inflating the airbags he got a figure of 925 to 930 millimetres.
Hammersley told the Court that it was his belief that, when he drove off the Temco site, the total height of his load was about 4.75 metres. He said that, when he left the Temco site, he travelled under a height indicator known as "bells" and he did not set off anything which might have indicated he was over height. However, Hammersley did not know what the height of the Temco bells was. The evidence of Andrew Taylor from Temco was to the effect they were 6.55 metres.
Hammersley was asked if anything happened after he left Temco which might have altered the load. He replied:
"Not that I was aware of, but I did notice on the journey out there that there was quite a bit of bouncing in the back end of the trailer which I thought maybe, just because the load was loaded different, that it was setting the suspension up different at the back. So I did not take a hell of a lot of notice at that, there was nothing falling off the truck, none of the chains were loose, so, I just naturally thought it was because it was a different configuration, the way it was loaded, that it was actually throwing different weight onto the suspension and it was just making it just a little bit different to ride with."
Hammersley was unable to see the whole of his load from the cabin of the prime mover, and there was no evidence he stopped to check it having noticed the bouncing around he described.
Another truck driver, Robert Duggan, saw Hammersley come out of the Temco site and followed him down the highway. He thought that the load looked too high. He tried to use his radio to contact Hammersley but was unsure of the appropriate channel to use. He did not in the end either communicate with Hammersley or anyone else. He did not attempt to overtake Hammersley, saying the area on the highway was not really wide enough, and he did not flash his headlights to try to gain Hammersleys attention. He said he dropped back because he did not want to be involved in anything which might flow if indeed the load was too high. He clearly had no opportunity to measure Hammersley's load and was simply using his own experience as a truck driver to make the assessment he did.
By reference to the definition section of the Vehicle and Traffic Act 1999 ("the Act"), each of the prime mover and the trailer it was towing was a vehicle. An oversize and overmass permit had been issued to Kellara pursuant to the Vehicle and Traffic (Vehicle Operations) Regulations 2001, Pt 6. That permit listed the trailer with registration number QT7777 as an individual vehicle, and not one being part of any combination. The permit provided:
"This permit authorises the vehicles specified to operate on public streets up to the loads and dimensions below. Loads and dimensions detected in excess of those listed in this permit will result in prosecution."
Under the heading "Dimensions", there was a requirement that the width of vehicle and load was not to exceed 4.5 metres, and the height of vehicle and load was not to exceed 4.9 metres.
The overpass
At the time of the collision the overpass had a sign on it depicting the clearance. That sign showed clearance of 5.2 metres. There was no suggestion on the evidence that the height of the overpass was anything less than that. At the point where the overpass crossed the road, there were two clearly marked lanes going in the direction Hammersley was driving, and one lane going the other way.
The distance between the road surface and the underneath of the overpass was measured by two different people after the collision. The first measuring was done by transport inspector, Mr Leonard, who attended the scene on 1 July. He measured twice using a measuring stick. The measurements he got were 5.77 metres and 5.78 metres. He accepted that he had difficulty with the measuring because it was windy and he needed to use the help of his off-sider. He conceded those measurements could be wrong but only by a small measurement. He also measured the width of the trailer to be 2.45 metres. The distance was also measured by a Mr Robin Ryan, a loss assessor and investigator engaged by the Insurer. He came to Tasmania on 9 July 2008 and inspected the overpass and the float. He measured the distance from the road surface to the underside of the overpass at a place only slightly different from that used by Mr Leonard. His evidence, which was not challenged, was that the distance was 5.66 metres.
The investigation of the collision
When Hamersley's load collided with the overpass, the excavator was knocked partially off the trailer. Hammersley brought the vehicle to a stop about 140 metres past the overpass, it being where he thought he could safely pull over. He telephoned the fleet controller for Kellara, Mr Wayne Walker, to report the accident.
Transport inspectors then attended, one of whom was Mr Leonard. Mr Leonard spoke to Hammersley at the scene. He also spoke to him about two hours later, and then again on 21 July 2008. On the first occasion on 1 July, Hammersley told Mr Leonard he had measured his load with a tape measure, and the height of the load was just under 4.5 metres. When Mr Leonard spoke to Hammersley again on 21 July, Hammersley told him the height of the load was 4.75 metres. He also said that the width of the load was 2.7 metres. Hammersley was also asked if, when he tied the excavator and implements on the trailer, he secured the excavator boom or attached bucket. He responded, "No comment because can't remember?"
Photographs were taken of the damage to both the overpass and the excavator. As to the excavator, the damage to it is shown in photographs 5 and 6 in exhibit P1. The hydraulic ram which extends out of the stick cylinder and connects to the stick was bent near where it connected with the stick. Each side of the top of the stick where the ram hinged, on the surface closest to the ram, was also damaged. By reference to photograph 8 in the same bundle of photographs it is apparent that, if the stick was extended out as shown there, the ram was pushed back into the stick cylinder. It would not be exposed as it is shown in the illustration which is annexure A.
The hydraulic ram which was apparently only bent when a photograph of the excavator was taken at the scene of the accident, subsequently appears as broken in photographs later taken at the police garage. There is no explanation for how and precisely when the break occurred. However it seems apparent from a question which Mr Leonard asked Hammersley at about 7.15pm on 1 July, some two hours after the collision, that it may have been broken by then.
The collision – was it caused by the negligence of Hammersley?
In any action in negligence, a plaintiff must show there was a duty of care and its scope. There is no dispute on this trial that Hammersley owed a duty to the State to take reasonable care not to damage the overpass. What was the scope of that duty? Counsel for the defendants submitted that duty was informed by the overweight and overmass permit to which I have already referred, and that Hammersley's duty was to comply with the terms of that permit, that is to ensure that his load did not exceed 4.9 metres in height.
Hammersley's duty of care to the State was to take reasonable care not to damage its property. He had driven the route he took before. He knew of the existence of the overpass, and he knew it had a height restriction and, I infer, that it was either 5.2 or 5.3 metres. His duty of care to the State was to take reasonable care to ensure the height of his load was such that it did not hit that overpass. That he might hit the overpass were the height of his load to exceed the height restriction on the overpass was an obviously foreseeable risk. That the trailer may have had a permit which allowed it to be loaded up to a height of 4.9 metres does not assist in determining the scope of any duty. All that the permit could have done was allow Hammersley, subject to the terms of the permit, to travel on a public street with a load up to that height without being prosecuted. It would not, for example, have excused him if he drove a vehicle loaded to 4.9 metres under a bridge he knew to be less than that height, simply because a permit allowed for the trailer to be loaded to that height.
What did Hammersley do? He told the Court he measured with the tape provided to him in the truck and measured in the only way he knew how. He had no other means available to him to measure his load. He said he chained his load down. He said he believed that when he left Temco his load was no more than 4.75 metres. Clearly the height of the load at the time of impact exceeded what Hammersley said he measured it to be.
Hammersley was dealing with an excavator which he knew was not loaded in the usual transportation mode. It had been loaded as it was to accommodate extra equipment. Despite the fact that someone else loaded the excavator and the equipment, as the driver of the vehicle it was his responsibility to ensure that the manner in which it was loaded was safe, and complied with whatever requirements it was necessary for him to comply with. That included the terms of any overweight and overmass permit and ensuring the load was low enough to get under the overpass.
Hammersley described where, on the trailer, the excavator was positioned. He used photograph number 8 in exhibit P1 for the purpose of his description. It was accepted that that photograph did not depict the prime mover, trailer and excavator involved in the accident but that it did depict their equivalent. Hammersley said, when his trailer was finally loaded, the bucket attached to the stick was either where it was shown in that photograph or further back towards the last set of wheels. He described having enough room to get round the back of the bucket between it and the ramps at the back of the trailer to be able to run the chain over. He said he only just had enough room to get round because he got grease on his jumper as he did so. He was quite adamant as to that positioning.
After he gave that evidence, Hammersley was shown CCTV footage taken of his truck as it left the Temco site. The footage was admitted into evidence by consent but, beyond a concession by counsel for the defendants that it showed Hammersley's truck leaving the Temco site on the relevant day, no other concessions were made as to what it showed. During the course of his cross-examination, Hammersley accepted that in the CCTV footage the bucket attached to the stick appeared to be positioned forward of the second set of axles from the back of the trailer. He was then pressed about his evidence as to what he said in evidence prior to the footage being shown about the position of the bucket. It was suggested to him that what was shown on the footage did not accord with what he had told the Court. He responded, "No that's not right". Hammersley was shown another camera angle of the truck leaving and the proposition was put to him:
"Again, did you accept the proposition there was some distance between the bucket on the end of the stick and the back of the trailer?"
He responded, "Well, that's proof to it there, isn't it." Counsel for the plaintiff then said to him, "That's what I'm asking you – did you accept that proposition?" and Hammersley responded, "No, I don't, because that's not where it was." When it was put to him if he meant that the footage was not showing how the excavator was loaded when he left Temco, he said, "No, not at all." He accepted however that the footage actually showed the bucket even in front of the second last set of wheels, and he said that the distance between that set of wheels and the back of the trailer was 2.4 metres or something like that. He repeated that what was shown in the footage was not how the excavator was loaded.
As to whether there was a chain over the stick as Hammersley described it to the Court before the footage was shown, he confirmed it was not there in the footage and said, "The chain's gone."
This exchange under cross-examination about the CCTV footage created an issue about the credit of Hammersley. Before I deal with that however I will comment on the CCTV footage. Counsel for the defendants made some submissions about how it could be used, and in effect suggested it was not a reliable piece of evidence. Had it been shown without more, I might have been inclined to agree with him, save for the quite obvious large gap between the bucket and the rear of the trailer. However, it was conceded the footage showed Hammersley leaving the Temco site in his truck prior to the accident, there was no evidence to suggest the footage had been tampered with or that the truck as loaded in Hammersley's presence had in some way been interfered with, and its configuration altered, before he left the site, and Hammersley admitted it showed the things I have identified above. The footage, and Hammersley's admissions in relation to what it depicted, demonstrated that what Hammersley told the Court prior to the footage being shown about certain things was clearly untrue.
It is not possible from the CCTV footage to make any findings as to how high the boom or stick may have been when the truck left Temco. However, by reference to photograph 8, to which I have previously referred, it is more likely than not that, if the bucket was sitting above or even slightly forward of the axle second from the back of the trailer, the point where the stick and boom meet would be higher than is shown in that photograph.
What also needs to be considered is the position of the damage to the excavator. The hydraulic ram connecting the stick to the stick cylinder (see photograph 4 in P1) was obviously bent at the end nearest the stick. There is no evidence the stick cylinder itself was bent, only the ram. It is more likely than not, for that to have occurred, that the ram was exposed or out of the stick cylinder when the excavator hit the overpass. That ram would not have been exposed to the extent it must have been for the bending to have occurred were the stick to have been extended as far back as Hammersley attempted to persuade the Court it was. The position of the damage to the top of the stick is a clear indication that was where the excavator hit the overpass. There was no evidence of damage to the top of the boom where the hoses are from which Hammersley said he measured. Therefore it must follow that the highest point of the load was the exposed ram and the top of the stick. The height of that must have been close to 5.6 metres for the impact to have occurred, given the measurement of Mr Ryan.
Hammersley told different people different heights for the load he said he measured. The highest of those was 4.75 metres. The actual height of his load at the point of collision was nearly a metre more than that.
It might be argued Hammersley measured using his tape, but either made a mistake as to where he measured from or as to the calculations that he did. In those circumstances, it would be argued there was no negligence. I am not satisfied that the obviously over-height load came about as a result of any such mistake made by Hammersley. The load must have been well over 4.75 metres in height when it was loaded. It is implausible to suggest that somehow, between the point at which the excavator was loaded and Hammersley said he chained it down, and when Hammersley left the Temco site, the load moved up nearly a metre and the chain disappeared.
Evidence was given at the trial by a Craig McKenzie who was a diesel mechanic with William Adams. He described that company as basically being a Caterpillar dealer and he was the product support representative for that brand. He was familiar with the operation of the Caterpillar 320C excavator and the way in which its hydraulic systems worked. In substance, he said that an excavator boom and stick, if the excavator was turned off, could not rise, perhaps from residual action in the hydraulic system. They could lower themselves but not rise.
Hammersley had also explained that when he chained the stick down it was for the purpose more of ensuring it did not move sideways.
I am satisfied in all the circumstances that Hammersley did not tell the truth about the positioning of the excavator on the trailer after it was loaded, and that he did not tell the truth about chaining the excavator down. I am satisfied the excavator was loaded, not as Hammersley suggested, but with the stick and attached bucket much further forward on the trailer. I am also satisfied there was no chain over any hook on the stick.
In the circumstances, can any reliance be placed on Hammersley's evidence as to having actually measured the height of his load, how he did so, and the result he said obtained? In my view it cannot. I am not satisfied in the circumstances that Hamersley measured his load in the manner he described using a tape measure. He could not have done so. Accepting that the load did not move up during the course of the journey after the vehicle left the Temco site, the difference between what the height of the load must have been at the time of the collision and the height Hammersley claimed to have measured it to be, was so great it would have been obvious to the naked eye, and particularly to the naked eye of an experienced truck driver as Hammersley was.
In the circumstances, the plaintiff's case against Hammersley is made out, and it must follow that the plaintiff must also succeed against Kellara.
The third party proceedings
There was no dispute that there was a policy of insurance in place in respect of Kellara's fleet with the Insurer at the time of the collision. There was also no dispute that Kellara sought indemnity from the Insurer in respect of any loss it might suffer as a result of the collision, and that the Insurer denied it had any obligation to indemnify.
The defence of the Insurer, at pars16 to 19, sets out the basis for its refusal to indemnify. Those paragraphs are as follows:
"16The Third Party says that it is not liable to indemnify the Defendants in respect to the claim made against the Defendants by the Plaintiff, having regard to the Terms and Conditions of the NTI Fleet Motor Policy (the policy), and specifically Section 2 (a)(B) (1) and to Exclusions: 4(c) (2), 4(d) and 7(i) which state:
Section 2(a) (B) (1):
2(a)We will pay any amount up to the Liability Limit shown in Parts 1 or 2 below (whichever applicable) for any number of claims arising out of one event, which You are held legally responsible to pay as a result of an accident, for damages in respect of:
(B)damage to or loss of property of Another Person caused:
(1) by You using Your Motor Vehicle;
Exclusion 4(c) (2)
4Loss, damage, liability and or compensation for damage caused to or by Your Motor Vehicle whilst Your Motor Vehicle is;
(c) (2) conveying any load in excess of:
(i)that for which constructed or for which licensed (whichever the lesser), or
(ii)that permitted by law.
Exclusion 4 (d):
4Loss, damage, liability and or compensation for damage caused to or by Your Motor Vehicle whilst Your Motor Vehicle is'
(d) being used in an unsafe or unroadworthy condition, unless such condition could not be readily detected by You.
Exclusion 7 (i):
7Loss or damage or liability caused by;
(i)recklessness by You or any person acting on Your part or by reckless failure to comply with any statutory obligations and by-laws or regulations imposed by any public authority, for the safety of the Motor Vehicle/ s and, for the carriage of goods and merchandise.
17The Third Party says the following facts entitle it to rely on the said Section and Exclusions:
(a) The Defendants' have denied the Plaintiffs claim and have not been held legally responsible to pay as a result of an accident, for damages in respect of damage to another person's property, caused by the Defendants use of an insured motor vehicle.
(b) The vehicle when loaded by the Defendants and transported:
(i)Exceeded the maximum permitted height of 4.3 metres for travel in the relevant circumstances and when loaded, in breach of Vehicle and Traffic (Vehicle Operations) Regulations 2001 Reg 16 (a), was approximately 6.6 metres in height.
(ii)Was attempted to be driven, by the Defendants while over height under the Plaintiffs bridge, which had a designated clearance height of 5.2 metres in breach of Traffic (Road Rules) Regulations 1999 Reg 102;
(iii)Was being transported without booms fully retracted and the load reduced to its smallest dimension, in breach of Vehicle and Traffic (Vehicle Operations) Regulations 2001 Reg 8(1).
18Further the Third Party says that it is entitled by Condition 3 of the Policy to refuse to pay a claim, or may reduce the amount payable under a claim to the extent that the Defendants breach of any policy condition causes or contributes to loss, damage or liability.
Condition 3 says:
You and any person acting on Your behalf must exercise reasonable care and precautions to prevent loss or damage to the Motor Vehicle, and comply with all statutory obligations and by-laws or regulations imposed by any public authority, for the safety of the Motor Vehicle/ s and, for the carriage of goods and merchandise.
19The Third Party alleges that the Defendants are in breach of Condition 3 of the Policy which caused or contributed to any liability and entitles the Third Party to refuse to pay.
PARTICULARS
The Third Party says that the Defendants did not exercise reasonable care and precautions to prevent loss or damage to the motor vehicle nor did they comply with all statutory obligations and bylaws and regulations imposed by public authority for the carriage of goods and merchandise in the circumstances, in that the vehicle when loaded by the Defendants and transported :
(a) Exceeded the maximum permitted height of 4.3 metres, for travel in the relevant circumstances, and when loaded, in breach of Vehicle and Traffic (Vehicle Operations) Regulations 2001 Reg 16 (a), was approximately 6.6 metres in height,
(b) Was attempted to be driven by the Defendants, while over height, under the Plaintiffs bridge, which had a designated clearance height of 5.2 metres, in breach of Traffic (Road Rules) Regulations 1999 Reg 102.
(c) Was being transported without booms fully retracted and the load reduced to its smallest dimension, in breach of Vehicle and Traffic (Vehicle Operations) Regulations 2001 Reg 8(1)."
In reply, the defendants pleaded as follows:
"THE DEFENDANTS' REPLY TO THIRD PARTY'S DEFENCE FILED 2 MARCH 2010
1 The defendants admit the facts alleged in paragraph 17(a) of the Third Party Defence but say that as a matter of law, practice and procedure those facts do not bar the defendants' claim in these proceedings against the third party for indemnity in respect of the liability in negligence asserted by the plaintiff in its action against the defendants.
2 As to paragraph 17(b)(i) of the Third Party Defence the defendants:
(a)admit that the height of the loaded vehicle exceeded 4.3 metres when it was loaded and at all times while it was being transported (that is, after the journey began);
(b)deny that 4.3 metres was the maximum height of the loaded vehicle, the vehicle being subject at all material times to an Oversize and Overmass Permit, permit no. 15284 issued on 4 October 2007 ('the Permit'), exempting the vehicle from Regulation 16 of the Vehicle and Traffic (Vehicle Operations) Regulations 2001 ('the Regulations') and imposing instead a limit of 4.9 metres with a tolerance of 10% over that limit;
(c)deny that the loaded vehicle was subject to the height restriction imposed by Reg. 16(a) of the Traffic (Vehicle Operations) Regulations 2001, thevehicle being subject at all material times to the Permit.
(d)deny that the height of the loaded vehicle was 6.6 metres when it was loaded and before the journey began;
(e)do not admit that the height of the loaded vehicle was 6.6 metres at any time while it was being transported;
(f)say that the height of the loaded vehicle was approximately 4.75 metres when it was loaded, as measured by the first defendant;
(g)do not know and therefore cannot say what the height of the loaded vehicle was at any time while it was being transported (that is, after the journey began) if it was at any time thereafter in excess of about 4.75 metres;
(h)say that if the height of the load exceeded any relevant limits and, or, 4.75 metres at any time while it was being transported, that must have been the result of:
(1) an inadvertent error in the measurements taken by the first defendant; or
(2)shifting of the load in the course of the journey, of which the first defendant was not aware, which resulted in the boom of the excavator being higher than it was when it was measured by the defendant.
3 As to paragraph 17(b)(ii) of the Third Party Defence the defendants:
(a)admit that the first defendant attempted to drive the loaded vehicle under the plaintiff's bridge;
(b)deny that the loaded vehicle was 'over height' if by that allegation it is asserted that the vehicle was subject to the height restriction imposed by Reg. 16(a) of the Traffic (Vehicle Operations) Regulations 2001;
(c)admit that signage placed on the bridge indicated that there was 5.2 metres clearance under the bridge;
(d)deny that the first defendant attempted to drive the loaded vehicle under the bridge in breach of the Traffic (Road Rules) Regulations 1999, Reg. 102.
4 The defendants deny that the facts alleged in paragraph 17(b) of the Third Party Defence, or any of those facts, if proved, entitle the third party to rely on Exclusion 4(c)(2) of the Policy by reason of the following additional insuring clause contained within the Policy:
'ACCIDENTAL OVERLOAD
Notwithstanding exclusion 4(c)2, Your policy is extended to include accidental overloading, but You must prove that such overloading was accidental.'
5 The defendants say that if the vehicle was overloaded within the meaning of Exclusion 4(c)(2) of the Policy such overloading was accidental.
Particulars
(a)The first defendant measured the loaded vehicle and commenced the journey during which the damage to the bridge occurred in the belief, informed by the measurements he had taken, that the height of the loaded vehicle was approximately 4.75 metres and therefore would not exceed any relevant limits.
(b)In the circumstances the first defendant did not foresee any risk that the load would strike the bridge.
(c)If the height of the load exceeded any relevant limits and, or, the clearance under the bridge, when the first defendant attempted to drive the loaded vehicle under the bridge, that must have been the result of:
(1) an inadvertent error in the measurements taken by the first defendant; or
(2)shifting of the load in the course of the journey, of which the first defendant was not aware, which resulted in the boom of the excavator being higher than it was when it was measured by the defendant.
6 The defendants deny that the facts alleged in paragraph 17(b) of the Third Party Defence, or any of those facts, if proved, entitle the third party to rely on Exclusion 4(d) of the Policy because the vehicle itself was at all material times in a safe and roadworthy condition and none of its normal functions were adversely affected by the load that it was carrying.
7 The defendants deny that the facts alleged in paragraph 17(b) of the Third Party Defence, or any of those facts, if proved, entitle the third party to rely on Exclusion 7(i) of the Policy because, if the load was in breach of any relevant statutory requirements or limits that was accidental and not the result of any recklessness on the part of either of the defendants.
8 The defendants admits that condition 3 of the Policy is in the terms set out in paragraph 18 of the third party defence, but the defendants denies condition 3 has the effect alleged in paragraph 18, insofar as paragraph 18 alleges that the third party is entitled to rely on condition 3 in respect of a breach of any policy condition. The defendants say that the third party may only rely on condition 3 of the policy in response to non-compliance with an obligation imposed by that condition.
The defendants say that:
(a)Insofar as condition 3 of the Policy is to be construed as imposing on the insured an obligation to exercise reasonable care and precautions to prevent loss or damage to the insured vehicle, it is of no relevance to the defendant's claim for indemnity in respect of the plaintiff's claim in the action because no claim is made by the plaintiff in respect of damage to the insured vehicle.
(b)Insofar as condition 3 of the Policy is to be construed as imposing on the insured an obligation to exercise reasonable care and precautions to comply with statutory obligations, by-laws and regulations for the safety of the insured vehicle, it is of no relevance to the defendant's claim for indemnity in respect of the plaintiff's claim in the action because no claim is made by the plaintiff in respect of damage to the insured vehicle.
(c)Insofar as condition 3 of the Policy is to be construed as imposing on the insured an obligation to exercise reasonable care and precautions to comply with statutory obligations, by-laws and regulations for the carriage of goods and merchandise:
(1)they deny that there was any failure to comply with any relevant statutory obligations, by-laws and regulations and repeat paragraphs 2 and 3 hereof;
(2)alternatively, any failure to comply with a relevant statutory obligation, by-law or regulations that occurred in the course of the journey during which the damage to the bridge was caused did not result from the failure of either defendant to exercise reasonable care and precautions to the extent required by condition 3, and they repeat the particulars of paragraph 5 hereof.
8 The defendants deny each and every allegation in paragraph 19 of the Third Party Defence.
The defendants further say that in the event that there was any failure to comply with a relevant statutory obligation, by-law or regulation with the result that the vehicle was overloaded, which is denied, and in the event that any such overloading would otherwise permit the third party to rely on condition 3, the defendants are entitled to the benefit of the additional insuring clause referred to in paragraph 4 hereof and they repeat the particulars of paragraph 5 hereof."
By way of response to the defendants' reply, the Insurer pleaded:
"The Third Party pleads to the Defendants' Reply dated the 28th day of February 2012 as follows:-
1 The Third Party joins issue with the allegations made by the Defendant, except those that amount to admissions.
2 The third party says that the second defendant's vehicle was not at all material times subject to the permit as the permit did not apply to the prime mover which was being utilised at the time of the damage to the plaintiffs bridge, as that prime mover was not specified in it, as required by regulation 50(g) of the Vehicle and Traffic (Vehicle Operations) Regulations 2001(the Regulations).
In the alternative and if at all material times the second defendant's vehicle was subject to the permit (which is denied)
3 The third party says that the permit did not exempt the vehicle from complying with regulation 16 because it did not provide for that exemption within the permit, as required by regulation 50(1)(d) of the Regulations.
4 The permit contained the following relevant terms, conditions and provisions:
The height of vehicle and load was not to exceed 4.9 metres.
(d) 1 operator's pilot vehicle was required at the front.
(e)Headlights, yellow flashing lamps and 'OVERSIZE' warning signs were to be fitted front and rear).
(g)The vehicle MUST be equipped with an accurate measuring device. The width, length, height and rear overhang of the vehicle/combination and load MUST be measured prior to departure.
(h)If the vehicle and load exceeds 4.5 metres in height it MUST have non-conductive skid rails fitted over the highest point of the load.
(o)The applicant [the second defendant] is responsible for ensuring the vehicle/load is capable of travelling the intended route safely.
5 At all material times the second defendant's vehicle and load was:
(a) In excess of 4.5 metres and was approximately 6.6 metres in height;
(b) Being driven;
(i) without any pilot vehicle;
(ii) without headlights, yellow flashing lamps, and oversize warnings signs fitted front and rear;
(c) Was not equipped with any or any accurate measuring device;
(d)Was not measured as to the width, length, height and rear overhang prior to departure on the journey which terminated at the time of damage to the plaintiff's bridge;
(e)Was not fitted with non-conductive skid rails over the highest point of the load.
6 At all material times the defendants failed to take any or any sufficient steps to ensure that the second defendant's vehicle/load was capable of travelling the intended route safely and without striking the plaintiffs bridge.
7 At all material times before the second defendant's vehicle was used the defendants did not assess the route to satisfy themselves that the vehicle could be used on that route without causing damage to the plaintiff's bridge, structure and rail crossing.
8 In the premises the defendant says that the permit was void pursuant to regulation 54(1)(c) of the Regulations because the defendants utilised the second defendant's vehicle:
(a) Contrary to condition and provision (d) of the permit; and
(b)With a height, inclusive of the load, that exceeded by more than 10% the height permitted under the permit.
9 In the premises the Third party says that the Defendant is in breach of exclusion clauses 4(c)(2) and 7(i) and condition 3 of the Policy because a load in excess of that permitted by law was being conveyed, by the defendants, or in the alternative there was a reckless failure, or in the alternative a failure to exercise reasonable care, to comply with the Regulations by reason of the following :-
(i) There were breaches of the conditions & provisions of the permit namely, (d),(e), (g), (h) and (o) and the height of the vehicle and load exceeded 4.9 metres and therefore breaches of Regulations 57 and 58 of the Regulations.
(ii) There was a breach of Regulation 61 of the Regulations as the defendants did not before using the particular route make an assessment and determine to their satisfaction that the second defendant's vehicle could be used on that route without causing damage to the Plaintiff's bridge, structure and rail crossing.
DATED this 28th day of March 2012"
The defendants relied on the permit referred to in par[21] of these reasons. That permit provided as follows:
"Permit Issued to: KELLARA TRANSPORT P/L Permit No: 15284
of 43 ARCHER STREET Issued On: 04-Oct-2007
ROCHERLEA TAS 7248 FAX 63264255 PHONE 63263955 At: 12:29
THIS PERMIT AUTHORISES THE VEHICLES SPECIFIED TO OPERATE ON PUBLIC STREETS UP TO THE LOADS AND DIMENSIONS BELOW. LOADS OR DIMENSIONS DETECTED IN EXCESS OF THOSE LISTED IN THIS PERMIT WILL RESULT IN PROSECUTION.
MOTOR VEHICLE
:Make
See Attached Vehicle
Reg No
See Attached Vehicle List
Axels
3 Tyres
10
TRAILER
:Make
See Attached Trailer LI
Reg No
See Attached Trailer List
Axels
3 Tyres
12
DOLLY
:Make
Reg No
Axels
0 Tyres
0
LOAD INDIVISIBLE LOAD
FROM VARIOUS
TO VARIOUS
DIMENSIONS (* See Attached Vehicle List. ** See Attached Trailer List)
Width of vehicle and load not to exceed
Height of vehicle and load not to exceed
Width of trailer axles to be at least
4.5 m
4.9 m
REGS m
Length of vehicle and load not to exceed
Rear overhang of vehicle not to exceed
Width of dolly axles to be at least
25 m
5.5 m
REGS m
MASS:
Minimum distance between extreme centres of drive/dolly axles to be
REGS m
Mass of steer axles(s) not to exceed
6 t
Mass of trailer axle/bogie not to exceed
t
Mass of drive axle/bogie not to exceed
16.5 t
Mass of trailer axle/bogie not to exceed
20 t
Mass of dolly axle/bogie not to exceed
N/A t
All up mass not to exceed
42.5 t
THIS PERMIT IS SUBJECT TO THE FOLLOWING CONDITIONS & PROVISIONS
(a)
Permit and pilot vehicles to be registered.
(b)
This permit may be cancelled or amended by an authorised officer.
(c)
No Police/Transport Inspector escort vehicles required.
(d)
1 Operator's pilot vehicles required at front. Pilot vehicles to be at the rear on divided roads.
(e)
Head lights, yellow flashing lamps. 'OVERSIZE'. warning signs (fitted front and rear), markings and communications between escort, pilot and load vehicles to be in accordance with the Vehicle and Traffic (Vehicle Operations) Regulations 2001 Schedules 2 and 3
(f)
A maximum of two oversize vehicles permitted. Where two vehicles are in convoy a space of at least 50m to be left between vehicles.
(g)
The vehicle MUST be equipped with an accurate measuring device. The width, length, height and rear overhang of the vehicle/combination and load MUST be measured prior to departure.
(h)
If the vehicle and load exceeds 4.6 metres in height it MUST have non conductive skid rails fitted over the highest point of the load.
(i)
(j)
Unless authorised below this permit is not valid for travel between sunset and sunrise or when fog or other weather conditions reduce visability below 100 metres nor for any travel when there is snow or ice on the road.
Unless specifically authorised below, this permit is not valid for travel on any road, section of road or bridge to which Road Rule No 103 of the Traffic (Road Rules) Regulations 1999 pertains if the mass of the vehicle and load or any axle load thereof exceeds the mass limit of a sign applying to the driver.
(k)
Permit vehicle to stop at regular intervals to let banked up traffic past if necessary and road conditions allow.
(l)
Vehicle to travel over the following roads: VARIOUS ROADS STATE WIDE with exception of the Bridgewater Bridge and Tasman Bridge and any road or bridge signposted with a regulatory mass or dimension that is less than the mas or dimension of the combination and load.
(m)
This permit is only valid from 05-Oct-2007 Until 05-Oct-2008
(n)
Additional Conditions 1) Pilot and escort vehicles are required in accordance with attachments 1,2 & 3. NOTE: REGS refers to the Vehicle and Traffic (Vehicle Operations) Regulations 2001. For enquiries relating to this permit phone (03) 6233 5214 during business hours.
(o)
The applicant is responsible for ensuring vehicle/load is capable of travelling the intended route safely.
THIS PERMIT, TOGETHER WITH ANY ATTACHMENT THEREOF, SHALL BE CARRIED IN THE VEHICLE TO WHICH IT REFERS
TASMAN BRIDGE NOT TO BE CROSSED WHEN IN EXCESS OF 3.0 METRES IN WIDTH OR 4.3 METRES IN HEIGHT
[signed]
for Transport Commission
BRIDGEWATER BRIDGE NOT TO BE CROSSED"
"Oversize and Over-mass Permit Attachment
Vehicle List for
Kellara Transport Pty Ltd
The following vehicles registered to Kellara Transport Pty/Ltd are covered by the wording 'See Attached Vehicle List' on Oversize and Overmass Permit Number 15284
| VEHICLE REGISTRATION (GVM/GCM) | MAKE | TRAILER REGISTRATION | MAKE |
| FH7637 23.5/45 | Mack CHR | YT2207 | Lusty |
| EF2305 25.5/70 | Mack CHR | XT7535 | Fruehauf |
| EH8961 23.5/45 | Mack CHR | RT5748 | Krueger |
| EC7574 24/70 | Mack Tridant | EQ1718 | Smiths |
| EV2570 24.2/70 | Mack Quantam | RT7788 | Barker |
| EV3520 25.5/65 | Volvo FH | YT7789 | Fruehauf |
| FD5408 24.7/70 | Mack Quantam | RT5748 | Krueger |
| FC6858 27.5/42.5 | International T2670 | QT5632 | Fruehauf |
| FJ7973 26/70 | Mack Super Liner | QT9231 | Smiths |
| ER3742 26.5/99 | Mack Titan | QT5632 | Freuhauf Extend |
| IT7567 | Custom | ||
| QT7777 | Custom |
This permit attachment and the relevant permit must be carried in the vehicles to which it refers whilst operating under the conditions of an Oversize and Overmass Permit.
[signed]
(Permit Officer Transport Commission)
Prepared on 4 October 2007 by Tony Beard"
Counsel for the defendants submitted that the permit entitled Hammersley to drive the trailer with an overall height, including load, of 4.9 metres. He conceded, however, that, at the time when the excavator hit the overpass, the vehicle was conveying a load in excess of that, and was therefore overloaded in the manner contemplated by cl 4(c)(2) of the policy. He also conceded that, but for the accidental overload clause in the policy, the Insurer would have been entitled to refuse indemnity by reference to cl 4(c)(2). Counsel for the defendants relied on that accidental overload clause.
Counsel for the third party submitted that there were various breaches of the permit which rendered the permit void. There were also breaches of the Regulations. Such breaches of the Regulations and the permit meant that the Insurer was entitled to rely on any of cls 4(c)(2), 4(d) and 7(1). He submitted that the accidental overload clause could only be relied on by the defendants in relation to the cl 4(c)(2) exclusion, and not in relation to any exclusion arising by reference to cl 4(d) or cl 7(1). He made a number of submissions about various breaches.
The first submission related to the sufficiency of the permit. Counsel for the Insurer submitted that the permit only referred to the trailer, and not the prime mover. Relying on the Regulations, reg50(1)(g)(i), he submitted that the permit "must include the vehicle or combination to which it applies and the registration number of each vehicle", and that this permit only referred to the trailer. He also submitted that there was no "attached trailer list" as was referred to in the permit.
As to the submission relating to reg50(1)(g)(i), that regulation provided that a permit must include, if applicable, the vehicle or combination to which it applied. Attached to this permit was a list of vehicles. Most appeared to be combinations. The last two entries, however, were for trailers on their own, one of which was a trailer bearing registration number QT7777, that is the trailer involved in the collision. The evidence was that that trailer was not necessarily used in a particular combination. The Act defines the term "vehicle" to mean "a motor vehicle or a trailer". It defines the term "combination" to mean "a motor vehicle connected to one or more trailers". There is nothing I have been able to find in the Regulations which says that a permit may not be issued to a vehicle, which by definition includes a trailer on its own, and that it must only be issued to a combination.
As to the issue about the list of vehicles attached to the permit, I accept that the body of the permit appeared to refer to an attached vehicle list and an attached trailer list, and that there was only one such list attached. I also accept that it was not entitled "Attached Trailer List". However, in the only list there was, the trailer in question appeared as a separate item and, as I have already said, a trailer is a vehicle in its own right. In my view, a common sense reading of the permit dictates that the list attached to the permit was intended to cover all motor vehicles and trailers intended to be covered by the permit.
The next submission related to reg50(1)(d). That provided that a permit must include the provisions of the Regulations, or the subject-matter of them, from which the class of vehicles was exempt. Counsel for the Insurer submitted that the permit did not exempt vehicles from complying with reg16 because the permit did not provide for that exemption in it. Regulation 16 provided that a person must not use, or permit the use of, a vehicle that exceeded 4.3 metres in height. Regulation 9 provided that the measurements of a vehicle or combination for the purpose of reg16 is taken to be inclusive of the load. The permit quite clearly made no specific reference to reg16. However, the permit provided:
"This permit authorises the vehicles specified to operate on public streets up to loads and dimensions below."
The "dimensions below" referred to the width of a vehicle and load and the height of a vehicle and load. The only regulation which restricted the height of a vehicle and its load was reg16. Clearly the permit was intended to provide an exemption from the requirement contained in that regulation. To suggest that, because reg16 is not specifically referred to and there is no wording to the effect that the permit is intended to provide an exemption from the height restrictions in that particular regulation, the permit does not provide for such an exemption, is taking principles of interpretation to ridiculous extremes.
The next submission by counsel for the Insurer related to reg50(1)(g)(iv). That regulation provided that a permit must, if applicable, include the maximum dimensions or loaded dimensions of a vehicle or combination or each vehicle in the combination. Counsel submitted that the permit only referred to the height of the trailer. In all these submissions, counsel for the Insurer is ignoring the words "if applicable". This is a permit which provides an exemption from a height restriction for a trailer. It does not in those circumstances have to detail every dimension not dealt with by the permit.
I am satisfied from the foregoing that the permit exempted the trailer from the height restriction contained in reg16, and provided it with the authority to travel on a public street with a height with load which did not exceed 4.9 metres.
Counsel for the Insurer submitted that, if the trailer were so exempt, the permit was void. These submissions were made by reference to the Regulations, reg54(1)(a), (c) and (e), reg57, and the conditions in the permit. Regulations 54(1)(a), (c) and (e) and reg57 provided as follows:
"54 Exemption may be void
(1) A permit is void and of no effect if the vehicle or combination to which the permit applies is used –
(a)on a route other than on a route which it is permitted to travel under the permit; or
(b) …
(c)while accompanied by fewer than the number of pilot vehicles required under the permit applying to it; or
(d) …
(e)with a dimension, inclusive of any load, that exceeds by more than 10% the dimensions permitted under the permit.
…
57(1) A person must not use, or cause or permit the use of, a vehicle or a combination, on a public street, that is subject to an exemption, otherwise than in accordance with the conditions applying to the exemption."
The first submission by counsel for the Insurer was by reference to reg54(1)(a), reg57 and condition (l) in the permit. A vehicle the subject of the permit was permitted to travel over various roads with the exception of "any road or bridge signposted with a regulatory mass or dimension that is less than the mass or dimension of the combination and load". The overpass on the highway over which Hammersley travelled had a height clearance sign of 5.2 metres. Hammersley's overall height was at least 5.6 metres. It follows that at the time of the collision Hammersley was driving on a route other than one he was permitted by the permit to travel on. By reference to reg54(1)(a) above, his driving of the trailer that day voided the permit.
The second submission was made by reference to reg54(1)(e). The permit height was 4.9 metres. The actual height of the trailer and load was at least 5.6 metres. The actual height was more than 10% above the permit height. Hammersley's driving that day would again have voided the permit on this basis.
The third submission was made by reference to reg54(1)(c) and condition (d) in the permit. Condition (d) provided:
"1 Operator's pilot vehicles required at front. Pilot vehicle to be at the rear on divided roads".
There was an additional condition, (o). That provided:
"Pilot and escort vehicles are required in accordance with attachments 1, 2 & 3."
Attachment 1 contained a requirement that:
"1 police/transport escort required over 5.0 metres high".
No pilot vehicles accompanied Hammersley on 1 July. Even on Hammersley's version of events, which I have not accepted, his overall height exceeded the height permitted, absent the permit. He was therefore only authorized to drive within the conditions on the permit. His actual height exceeded five metres. The absence of any pilot vehicle constituted a breach of the permit and reg54(1)(c). Hammersley, by driving as he did, therefore voided the permit on that basis.
Counsel for the Insurer referred to a number of other transgressions which he asserted constituted breaches of the permit and/or the Regulations. These were:
(a) failure to have an accurate measuring device and to measure before departure (condition (g));
(b)failure to have non-conductive skid rails fitted over the highest point of the load (condition (h));
(c)failure to ensure the vehicle was capable of travelling the intended route safely (condition (o));
(d)breach of reg58 by having the height of the combination and load exceed 4.9 metres as specified in the permit;
(e)breach of reg61 in failing to assess the route and be satisfied that the combination could be used on that route without causing damage to any bridge, structure or rail crossing.
Counsel for the Insurer also submitted that Hammersley's plea of guilty to a charge that he contravened reg16 was evidence that he knew the combination he was driving was not exempt by reference to the permit.
I have not found it necessary to deal with each of the asserted breaches identified in par[62] or the effect of the plea of guilty because the findings I have already made result in a finding that the permit which did exist was void throughout the journey made by Hammersley that day and at the time of the collision.
Ultimately the submission by counsel for the Insurer was that the various breaches established that the vehicle was:
(a)conveying a load in excess of that for which it was licensed or permitted by law in breach of cl 4(c)(2); and
(b) being used in an unsafe and unroadworthy condition in breach of cl 4(d);
In the alternative, it was argued the various breaches established the defendants had acted recklessly.
It may however not be necessary even to look at these bases for refusal if the defendants are unsuccessful in relation to the accidental overload issue.
The accidental overload clause
On what I believe may be page 8 of the relevant insurance policy, there is a heading, "Fleet Motor Policy Additional Insuring Clauses". Underneath that is a heading "Accidental Overload". Under that appear the following words:
"Notwithstanding exclusion 4(c)(2), Your policy is extended to include accidental overloading, but You must prove that such overloading was accidental."
The defendants conceded that the trailer was overloaded for the purpose of cl 4(c)(2). Their counsel submitted that the effect of this accidental overload clause was that, if the defendants could prove that the overloading was accidental, the exclusion in cl4(c)(2) did not operate to allow the Insurer to refuse indemnity. There was no real difference between counsel as to the meaning of "accidental". By reference to the definition of the term "accident" in the policy, counsel for the Insurer submitted that it meant an unintended, unforseen, unlooked-for happening or mishap which was not expected or designed. By reference to the words of Wilson, Deane and Dawson JJ in Australian Casualty Co v Frederico (1986) 160 CLR 513 at 527, counsel for the defendants submitted it meant something which happened without intention or design, or something which was unexpected or unintended. The passage to which counsel for the defendants referred is actually at par[13] where their Honours said:
"13 As a matter of ordinary language in this country, an 'accident' (from the Latin accidens) means very much what the etymologist would expect. It is something which happens without intention or design. When used with reference to something which causes injury, it means an unexpected and unintended mishap. In that context, the ordinary and natural meaning of the word still corresponds with Lord Macnaghten's definition in Fenton v Thorley & Co, Limited (1903) AC 443, at p 448 which, although propounded in a Workmen's Compensation Act case, has commonly been accepted as applicable to the use of the word in public liability and other insurance policies: 'an unlooked-for mishap or an untoward event which is not expected or designed' (see, to the same effect, Lord Lindley at p453)."
It is clear that the passage quoted there informed the policy definition.
The focus must be on the loading of the trailer. Was it overloaded by accident? I am not satisfied that it was. I have already determined that Hammersley did not measure at all with a measuring tape as he claimed or that, if he did measure in some way, it was in such a way that it produced an entirely unreliable result. The height at the time of the collision was such that it exceeded by nearly a metre what Hammersley said he measured it at. If indeed he did measure in some way, the variation between what he thought the height was and the actual height must have been obvious to an experienced truck driver such as Hammersley had he paid any attention to the issue of height.
The evidence of Craig McKenzie was to the effect that the load in the form of the boom and the stick could not have raised in height with the excavator's engine turned off. There was also the evidence of Mr Duggan who thought that the load looked too high when he first saw it coming out of Temco. I am satisfied that the excessive height which existed at the time of the collision was as a consequence of the initial loading and not subsequent events.
The overloading in this case cannot be said to be due to accident. Hammersley knew the route he was to take, and knew it had an overpass with a height restriction. As an experienced truck driver and one used to carting heavy machinery, he had to have been aware of the need to ensure the height of his vehicle and its load enabled him to travel on a route he had travelled many times before. He knew what the accepted mode of transportation was for an excavator of this type, and knew he was transporting it in a different way. That the trailer and its load could have been over height simply because of the different way in which the excavator was positioned to accommodate extra equipment, had to have been an event which could be expected or foreseen. Even if Hammersley measured as he said he did, the difference between what he said he believed the height to be and what it was, was so great that it must have been obvious to the naked eye. The difference between the two was not so slight that it could be inadvertent either as a result of error in measuring or in adding up.
In the circumstances I am not satisfied that the defendants have discharged their onus of proving the overloading was accidental. It is unnecessary, given this finding, to consider the impact of cls 4(d) and 7(1). It must follow that the Insurer was entitled to refuse to indemnify Kellara under the terms of the relevant policy.
Outcome
In the circumstances the orders are:
(a)that there be judgment for the plaintiff against the defendants in such sum as shall be agreed or determined by the Court, and
(b) that the defendants' claim against the third party is dismissed.
ANNEXURE A
ANNEXURE B
1
2