Stillwell Trucks Pty Ltd v McKay & Ors

[2002] NSWCA 292

CITATION:	Stillwell Trucks v McKay; Stillwell Trucks v TNT [2002] NSWCA 292
FILE NUMBER(S):	CA 40752/01; 40753/01
HEARING DATE(S):	18-19 June 2002
JUDGMENT DATE:	10 September 2002
PARTIES :	Stillwell Trucks Pty Limited v Kevin McKay Stillwell Trucks Pty Limited v TNT Australia Limited
JUDGMENT OF:	Handley JA at 1; Beazley JA at 2; Campbell AJA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 5885/97; DC 9076/97
LOWER COURT JUDICIAL OFFICER :	Susan J Gibb DCJ

COUNSEL:	Appellant - ACA Bridge SC/I McLachlan Respondent - CRR Hoeben SC/RS Sheldon
SOLICITORS:	Appellant - Hunt & Hunt Respondent - Ebsworth & Ebsworth
CATCHWORDS:	NEGLIGENCE - no question of principle
CASES CITED:	Makita (Australia) Pty Limited v Sprowles [2001] NSW CA 305 C Van de Ley NV v Bamfords Ltd (1963) RPC 61 Short v Barrett (CA unrep 5/10/90) Aardvark Security Services Pty Ltd v Ruszkowski (1996) 13 NSW CCR 1 Abalos v Australian Postal Commission (1990) 171 CLR 167 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200 Piening v Wanless (1968) 117 CLR 498 Nominal Defendant v Halsbauer (1967) 117 CLR 448
DECISION:	In each appeal; Appeal dismissed; Appellant to pay the respondent's costs

CA 40752-3/01
CL 9076/97

HANDLEY JA
BEAZLEY JA
CAMPBELL AJA

10 September 2002

STILLWELL TRUCKS PTY Limited v KEVIN MCKAY and STILLWELL TRUCKS PTY Limited v TNT AUSTRALIA Limited

NEGLIGENCE – no question of principle

TNT contracted for the appellant to extend the wheel base of a prime mover to increase its capacity. The day after the prime mover was returned to TNT it rolled over while rounding a corner on the Pacific Highway. The driver sued the appellant for personal injuries and TNT sued for property damage and other losses.

The trial Judge found that the prime mover rolled over because of a failure in the suspension which caused the air bags to deflate and that this was the result of faulty work done by the appellant. The trial Judge found for the driver and TNT and awarded $568,490.57 and $510,144.16 respectively. The appellant challenged the trial Judge’s findings on liability and damages.

HELD: The trial Judge’s findings could not be disturbed.

ORDERS

(1) Appeals dismissed.

(2) Appellant to pay the respondents’ costs.

CA 40752-3/01
CL 9076/97

HANDLEY JA
BEAZLEY JA
CAMPBELL AJA

10 September 2002

STILLWELL TRUCKS PTY Limited v KEVIN MCKAY and STILLWELL TRUCKS PTY Limited v TNT AUSTRALIA Limited

Judgment

1 HANDLEY JA: I agree with Campbell AJA.

2 BEAZLEY JA: I agree with Campbell AJA.

3 CAMPBELL AJA: This is an appeal from a judgment of Judge Gibb delivered in the District Court on 14 September 2001.

4 The judgment dealt with two actions which were, by consent, heard together with the evidence in one to be evidence in the other. In the first action framed in negligence Kevin John McKay (McKay) sued Stillwell Trucks Pty Ltd (Stillwell) in respect of personal injuries. In the second action framed in negligence and breach of contract TNT Australia Ltd (TNT) sued Stillwell for property damage and other losses including workers’ compensation payments made to McKay. Judge Gibb found a verdict for McKay and entered judgment against Stillwell in the sum of $568,490.57. Her Honour also found a verdict for TNT and entered judgment against Stillwell in the sum of $510,144.16.

5 It is convenient to say that there was no finding of contributory negligence against McKay and that nothing turns in this appeal upon the inclusion of a claim for breach of contract in TNT’s action.

6 The appeal is in respect of liability in both actions and in respect of damages in McKay’s action.

Background

7 TNT was the owner of a Ford Louisville prime mover with a standard wheel base of 4,700 mm. Increasing the wheelbase to 4,850mm, another standard length, would increase the load the prime mover and trailer could lawfully carry. TNT engaged Stillwell to carry out that work.

8 From the tendered records it would seem that the prime mover was received by Stillwells at 6.03pm on 7 September 1994. Mr Harradine, who did the mechanical work, could not recall how long the prime mover was at Stillwells but said that he would expect a vehicle brought in for this type of work would be in the workshop for less than two days.

9 Mr Harradine carried out the modification work. He had done about 20 such modifications of Louisville prime movers by that time. I come later to discuss the work and its surrounding circumstances.

10 Mr Williams, an employee of TNT, picked up the vehicle from Stillwells on a date which Mr Bridge SC put in his written submissions as being 14 September 1994 immediately after the reassembly of the chassis. Mr William’s evidence is broadly consistent with this. He drove the prime mover, without a trailer, to TNT’s depot at Kempsey. He did not observe any abnormal behaviour on the part of the prime mover during that journey.

11 The discrepancy between the time from 7 September 1994 to 14 September 1994, on the one hand, and Mr Harridan’s reference to two days may be explained by evidence which he gave that the records were at times inaccurate. It is not disputed that the vehicle left Stillwell’s on the day before the relevant accident occurred.

12 At about 9pm on Thursday 15 September 1994 McKay attended the Kempsey depot of TNT and conducted a routine inspection of the vehicle before setting out for Sydney. The attached Barker platform trailer was loaded with a container which contained cartons of Milo.

13 At about 9:30pm McKay left the depot travelling with a truck driven by Mr Hudson and another driven by Mr Power.

Of the truck McKay said:

The vehicle seemed to me to be normal, it’s just a little bit lighter in the steering, but that could be for tyre pressure or anything. I didn’t notice anything unusual, no.

14 At about 11:15pm the truck was on the Pacific Highway heading South about 5km south of Nabiac when it approached a right hand bend after a decline in the road, turned over and slid along the road and verge injuring McKay and damaging the prime mover, trailer and load.

15 McKay, who Judge Gibb accepted as truthful and reliable, described what happened in the following passage taken from the judgment:

Q. Perhaps in your own words, can you explain as you were going up towards I think the crest of the hill, it’s a slight incline as you described, what sort of speed were you travelling at there?

A. 85 to 90 kilometres an hour.
...
A. As I came over the crest of the hill and started down the decline slightly, the truck seemed to give a little bit of a fishtail, a bit of a kick. I thought that I might have hit a patch of diesel oil or something on the road but the road was dry, there was no rain, it was a good road, and I never seen anything. It just gave a slight kick on the end, like .... (it had?) hit something slippery on the road, and I immediately took my foot off the accelerator because I didn’t know what it was and the truck started to steer slightly to the left. I didn’t touch the brakes because I didn’t know what it was - that it definitely seemed like there was something mechanical. I was a bit reluctant to try and touch the brakes in case I caused a jackknife cause I didn’t know what it was, so I had my foot off the accelerator and let the jake (engine compression) brake slow the vehicle down as I came down to the bottom of the hill.
As I came down to the corner it started to steer off to the left.
...
...the whole unit, your Honour. The prime mover was steering the vehicle off to the left. It felt to me, myself, like it was an axle out of alignment and because I didn’t know what it was I just kept my foot off the brake and let the vehicle slow down to the (right hand) corner. As I got to the corner the steering got lighter and I couldn’t get around the (right hand) corner.

Q. When you say the steering got lighter, does that mean you had less control?
A. Yeah, I had less control of the vehicle. I couldn’t steer it back onto the road. I was trying to steer it back onto the road and I wasn’t having any success.
...
I got off onto the verge of the road into the grass section and I heard somebody (over the CB radio) saying, “Check out the sparks” or something to that effect which I thought they were referring to my vehicle, and the next minute it decided to lay down (capsize).
...
It rolled over to the passenger side, the left-hand side.
Q. ... Did it all roll together.
A. The whole lot went together.
Judge: Does that mean that the engine part and the trailer rolled equally or one went first.
To tell you the truth, I wasn’t looking but I would say the trailer or the prime mover started to go. It just went over in one piece. Traditionally it’s just usually the trailer that starts to go.

16 Judge Gibb accepted that the truck rolled over because a rose joint at the upper end of an extension arm failed. This allowed the air bags which formed part of the suspension system to deflate leading to the roll over whilst the vehicle was in the corner.

The Judge accepted:
“.... that, in the course of its modification works, when it had exclusive control of the Ford Louisville LTS prime mover, the defendant (through its agents or employees) (by act or omission) negligently:-
caused or permitted damage to the rose or ball joint or (sic) the extension arm/levelling rod; or
inadequately or improperly secured, attached or re-installed the extension arm/levelling rod, such that the extension arm/levelling rod came adrift by about a day later - on the evening of the 15 September 1994 - as Mr McKay drove the Ford Louisville LTS prime mover pulling the laden trailer. Without that negligence, the extension arm/levelling rod would not have come adrift. The negligence was thus causative of the capsize”.

17 It was on the basis of these findings that the Judge entered the judgments the subject of the present appeal.

Grounds of Appeal as to Liability

18 The Grounds of Appeal as to Liability are as follows:

1 Her Honour was in error in finding that during the course of any work performed to the front suspension of the Prime Mover by the Appellant the Appellant damaged the upper rose joint on the height adjuster extension arm.

2 Her Honour was in error in finding that in the event that there was any such damage, the Respondent had proven on the balance of probabilities that any such damage was a materially contributing cause of any failure of the upper rose joint on the height adjuster extension arm.

3 Her Honour was in error in finding that the failure (if any) of the upper rose joint on the height adjuster extension arm was, in any event a materially contributing cause of the accident.

4 Her Honour was in error in finding that any such damage to the height adjuster extension arm occurred in circumstances constituting liability in negligence or breach of contract on the part of the Defendant.

5 Her Honour was in error in finding that any act or omission of the Respondent (sic) (whether related to the height adjuster extension arm, the fitting thereof or otherwise) occurred in circumstances constituting liability in negligence or breach of contact on the part of the Defendant.

6 Her Honour was in error in accepting the evidence of Mr Geoff Senz (a witness called by the Respondent(s) as an expert) upon the basis that the witness did not satisfy the requirements for the expression of an expert opinion as required by Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305.

7 Her Honour was in error in rejecting the evidence of Mr Michael Griffiths (an expert called by the Appellant) upon the grounds that:-

The opinion of Mr Griffiths was preferable to those of Messrs Axup and Senz and ought to have been accepted by Her Honour;

Her Honour’s conduct during the course of the evidence of Mr Griffiths and Her Honour’s reasoning in rejecting such evidence in her judgment demonstrated that Her Honour failed to use at all or palpably misused her advantage.

8 Her Honour’s conduct during the course of the trial and Her Honour (sic) reasoning in rejecting all evidence adduced by or favourable to the Appellant on the issues upon which Her Honour determined liability while accepting all evidence adduced by or favourable to the Respondent on the issues upon which Her Honour determined liability demonstrated that Her Honour failed to use at all or palpably misused her advantage to the extent that the whole trial miscarried.

9 Her Honour was in error in finding that the principle of res ipsa loquitur:-

(a) Had any application to the facts of the matter, and

(b) Provided any basis for determining liability in favour of the Respondent.

10 Her Honour was in error in finding in favour of the Respondent.

Discussion

19 It is convenient to follow the order of the judgment below and to deal first with the issues relating to the immediate cause of the roll over itself. Although there is some overlap these issues involve principally a consideration of grounds 2, 3, 6, 7 and 8.

20 The view as to the immediate cause of the roll over which was accepted by Her Honour was substantially dependent upon the opinions of Mr Axup, an expert who had examined the truck and the crash site for TNT and Mr Senz, an expert engaged to express an opinion by McKay’s solicitors.

21 However, the evidence of McKay and Mr Power, both of whom the Judge accepted after seeing and hearing them as truthful and reliable witnesses, played a significant part in the rejection of other theories as to causation advanced at the trial.

22 The Judge did not accept that a broken Z leaf spring upon the trailer was the cause. In part that conclusion depended upon acceptance of McKay’s evidence that he could tell that a malfunction occurred at the rear of the prime mover not in the trailer. This explanation, that is the broken trailer spring, was one favoured by Mr Griffiths, an expert called by the appellant, later in the trial. Mr Griffiths’ primary contention was that McKay had been driving at an excessive speed and this theory formed much of the appellant’s case. The Judge accepted the evidence of McKay that he was not driving at an excessive speed. That evidence was supported by evidence from Mr Power and also evidence of a scientific nature from Mr Axup and Mr Senz to which it is unnecessary to go.

23 I should add that reference is made in the appellant’s written submissions to other conduct of McKay being failure to keep a proper look out, annoyance with a driver who was following close behind or failure to keep the truck on the bitumen. It is sufficient to say that none of these matters were made out or, in the end, pressed as distinct from the question of speeding.

24 Mr Bridge of Senior Counsel, who appeared with Mr McLachlan of Counsel for the appellant, very properly conceded that it would be difficult to challenge the Judge’s finding that McKay was not speeding. Although not so clearly, I take him to also concede that the finding in relation to the Z leaf spring would be difficult to displace.

25 The substantial thrust of the appellant’s submissions on this issue was that the factual foundation was not available upon which Judge Gibb could draw, as the two experts did, the inference that failure of the rose joint caused the roll over.

26 To examine this issue it is necessary to go to the evidence of Mr Axup and that of Mr Senz. I deal later with a submission, which I do not accept, that the evidence of Mr Senz should not be regarded as that of an expert.

27 Having regard to some rather uncertain use of the names of parts at the trial it is appropriate that I first set down a short description of the mechanism of which the rose joint and extension rod forms part.

28 The prime mover was fitted with a Hendrickson HA Series suspension which contained four air springs (bags) designed to counteract the effect of load on the vehicle by being inflated or deflated as appropriate to keep the vehicle at the same height.

29 The amount of air in the bags was controlled by a single height control valve mounted on the chassis rail. The valve was operated by a levelling arm, which is lightly constructed being only 2mm thick. From one end of the levelling arm, connected to it by a rose joint, an extension arm (or rod) establishes a link to the suspension at the base of the nearside rear air bag to which it is connected by another rose joint. The extension rod is about 8mm in diameter and is also lightly constructed. As the chassis moves up and down the levelling arm lifts or falls thus operating the valve. It was not disputed that the extension rod and the levelling arm were fragile. Mr Senz described the extension rod as ‘very fragile’.

30 Mr Axup, a former Chief Superintendent within the Traffic Department of the Victorian Police Force, with both practical and academic experience of accident investigation was accepted by Judge Gibb as qualified to give expert evidence in the area in which he claimed to be able to do so. She described him as an honest and professional witness who did his best to provide disinterested, expert assessments and to consider the data available to him objectively and professionally. She noted that she accepted Mr Axup’s evidence and opinions.

31 In the appeal Mr Axup’s qualifications as an expert witness were not challenged.

32 Engaged by TNT he attended the scene of the accident on 17 September 1994 and again on 18 September 1994. He also inspected the prime mover and trailer which had been moved from the site. A number of photographs were taken. In a report of 15 September 1999 he rejected the view that the roll over was due to excessive speed and put the view that the accident had happened either because the rear suspension of the prime mover was misaligned at the time of the rebuilding or failed between the time of leaving Kempsey and arriving at the scene of the accident.

33 Mr Axup strongly recommended that the drive axle group and suspension system should be examined by a mechanic totally conversant with the Hendrickson air bag suspension. Unfortunately, this was never done and the matter falls to be resolved without the advantage of such a report or the physical parts in question.

34 Mr Axup did, however, identify a failure in the levelling rod and lever attached to the suspension system. Judge Gibb was satisfied that he was confident that there had been a failure and that that failure had preceded the capsize.

35 Whilst the appellant’s submissions tended to concentrate on alleged deficiencies in Mr Senz’s evidence as to the failure of the upper rose joint, as Mr Hoeben of Senior Counsel, who appeared with Mr Sheldon of Counsel for the respondents, pointed out Mr Axup had given evidence to similar effect. Differences of nomenclature are of no significance.

36 As the Judge found both Mr Senz and Mr Axup noted that the extension arm/levelling rod was relatively frail and that it appeared not to have been damaged in the capsize, although far more robust beams and struts in the vicinity had been sheered or distorted. From this they concluded that the extension arm/levelling rod was not functioning properly before the capsize.

37 During cross examination by Mr Royle Mr Axup identified in photographs marked 35 and 37, which he had taken of the wreck, part of the levelling (extension) rod. He gave evidence:-

Sorry ma’am, if - immediately above this joint here, in terms of the photographs, but actually below it in terms of the physical truck, there is a small rod, a straight rod, which runs up, and then is obscured by the chassis rail.

Oh I see, the vertical one.

A. Yes, it’s almost vertical, ma’am. That’s part of the suspension of the truck. It’s part of the levelling mechanism and that’s part of the levelling mechanism.

Q. Royle: How is that rod connected to the levelling mechanism?

A. It’s connected by a small joint to the levelling lever, which adjusts the air pressure in the . . .

From your observation of the truck and from the photograph are you able to say certainly that at that time, whether or not that rod was still connected to the rod, by means of the joint that you described?

A. No sir, it wasn’t. One of the other photographs, photograph 35.

Q. Can you indicate how 35 shows that?

A. Ma’am, in behind this circular washer. I’m sorry, sir, in here on the chassis rail.

Her Honour: I can’t see any of that, I’m afraid.

Royle: Can I go up near the witness box your Honour? This is pretty important.

Her Honour: I can see, so long as he is angled towards me. He had his back between me and the photograph.

A. Just in under here, ma’am, there’s what appears to be the end of the joint, the little joint which connects to the lever, the height adjustment lever.

Q. Near where the blue line is running?

A. There’s a line, a hose, ma’am, which runs from the top of the chassis rail and it’s the most forward of those, this one here.

Q. The one running down at about 45 degrees?

A. Yes ma’am. Just in between it the large circular washer, you can see in behind there what appears to be or it is the little joint off the levelling rod.

Q. So in a perfect world, the levelling rod would be sitting on the top of that.

A. That one which is visible and the other one is supposed to join to that. That’s part of the level. Part of the levelling mechanism for the system.

38 Mr Axup gave evidence that if the levelling arm is disconnected from the levelling (extension) rod the mechanism which tells the system whether there should be more or less air pressure is no longer effective.

39 He gave the following evidence:

Q. I think you said yesterday that the levelling rod should normally be connected to; I think you described it as a joint.

A. There’s a - there should be a joint there on the lever, which is that there, and that appears to be the joint there.
. . .

Q. Then you’ve marked another joint on photograph 35, which you’ve described as "rose joint behind line".

A. That appears to be the top end of that rod in 37, with the rose joint on it, which should be attached to that lever.

40 Mr Axup then gave evidence the general effect of which was that he considered that the extension rod was not connected at both ends at the time of the roll over as it was not damaged - as a matter of observation - whereas much more substantial components were.

41 The evidence of Mr Axup amply supports the conclusion the Judge drew to which I have referred above.

42 Mr Senz, an Automotive Consultant, Member of the Institute of Automotive Mechanical Engineers, Associate Member of the Society of Automotive Engineers Australia with extensive experience in technical advice and in respect of the maintenance and behaviour of motor vehicles, was accepted by Judge Gibb as qualified to give expert evidence in respect of the issues arising in the matter.

43 He was not engaged by McKay’s solicitors, it would appear, until late 1998 or early 1999. He did not see the prime mover or trailer in their damaged state although he inspected the prime mover repaired and in operation in January 1999. Mr Senz had available to him Mr Axup’s report and photographs.

44 In his report of 19 February 1999 Mr Senz said:

It is not unreasonable to suggest:-

· McKay’s account of the events can be substantiated.

· The upper rose joint on the suspension height adjuster extension arm failed and caused the accident rather than excessive speed.

· Stillwell Trucks recently worked on the suspension height adjuster during their modifications.

45 Despite the somewhat qualified language Mr Senz made it clear, in evidence, that he believed that the failure of the rose joint was the probable cause of the roll over.

46 Apart from its consistency with the events which occurred Mr Senz concluded that the rose joint had failed by reference to a number of photographs of which the main ones were taken by Mr Axup.

47 Photograph Ford 4, taken by Mr Senz, shows the levelling arm and extension arm or rod as discussed in my earlier description of the mechanism. Mr Senz comments in the annotation that although the components are lightly constructed they do not normally take heavy loads but could be easily bent if fouled or over stressed.

48 Photograph Ford 5 shows the mechanism with the upper rose disconnected and the annotation notes that the extension arm would fall down once that occurred.

49 Photograph Axup 35 was taken by Mr Axup at the scene of the roll over. Relevantly the annotation reads:

This photograph however also shows the outer end of the height adjuster valve’s levelling arm. By zooming in on the photograph we see what appears to be the rose joint ball. The end of the levelling arm is sitting in about the same position as shown in photograph “Ford 5”. Despite the limited view the levelling arm shows no sign of twisting or distortion that might suggest it were overloaded or damaged in the accident. Although the photographs taken by Axup and myself don’t show it clearly but there is a considerable clearance around the height adjuster levelling and extension arms. During the accident this clearance would increase as the chassis rail moved away with the collapse of the track rod. If we examine the levelling arm shown in photograph “Ford 5” we can see that it is rather flimsy in appearance being a thin piece of steel. Weakness of the levelling arm is critical to the cause of this accident because if the joint failed without bending the levelling arm then the failure occurred prior to the suspension collapse. In short the joint failed while the truck was in the corner and let the truck roll over by deflating the suspension.

50 Mr Senz goes on by way of summary to say:

Close examination of the photograph near the damaged washer shows the height adjuster levelling arm rose joint failed prior to the accident.

51 Photograph Axup 37, also taken by Mr Axup, shows amongst other things a small section of the height adjusters’ extension arm. The annotation reads:

The arm is angled to suggest it’s still connected at the bottom end and appears as though it has not been bent, although we can only see the mid section. Since the arm is relatively small in diameter compared with its overall length it will be very vulnerable to buckling therefore if the middle is straight it is highly probable the arm is straight.

52 Mr Senz concluded that the adjuster extension arm had fallen down behind the chassis without becoming bent. It is clear that that fact, in his view, supports a failure prior to the roll over.

53 I deal later with the possible corroboration of the absence of damage to the levelling arm and extension rod to be drawn from repair parts lists.

54 As Mr Hoeben pointed out Mr Griffiths’ comment in his report as to what can be seen in Axup 35 is not a complete denial. He says:

I was not able to positively identify the object as a rose joint ball. . . There is no substantiation in the photograph that the object Senz points to is the rose joint ball. Even if it is the rose joint ball, there is no substantiation that the rose joint failed.

55 Mr Griffiths accepted that the linkage was not intact, however, his position was that there was no evidence of when it broke.

56 Mr O’Keefe gave evidence that he did not see in photograph 35 anything resembling MFI 53 or any part of MFI 53. That MFI, which was tendered, was an extension rod with rose joints at each end.

57 As to O’Keefe’s evidence on this point Judge Gibb said that he was neither disinterested nor testifying as an expert.

58 In her judgement Judge Gibb said:

In submission the defendant’s senior counsel noted that the extension arm/levelling rod had not been replaced as part of the repairs after the accident, from which it could be inferred that the rod had not been damaged in the accident. Mr Bridge SC also submitted that:

There was no reference to the height adjuster extension arm being repaired or replaced by Buckley Truck Repairs, the business which carried out the repairs to the prime mover (Exhibit G). The evidence is that one would expect there to be such a reference in the repair quotation.

Quite so. The plaintiffs urged that the same inference be drawn - and I do draw that inference. The extension arm/levelling rod were (or, if one piece, was) not damaged in the capsize.

Mr Senz and Mr Axup -whose respective opinions I accept - proffer the following logic.

· The extension arm/levelling rod is required to be connected at both end (sic) to function properly.

· The extension arm/levelling rod would have been damaged in the capsize had it been under any pressure.

· It would have been under pressure if it was connected at both ends.

· The extension arm/levelling rod was not replaced after the accident; therefore it was not damaged in the accident.

· Therefore, good condition of the extension arm/levelling rod after the accident is proof that before the capsize it was not under pressure and therefore not connected at both ends (and therefore that it was not functioning properly).

I accept that reasoning - and that conclusion. It does not, of course, explain how - by what mechanism - the extension arm/levelling rod ceased to be connected.
Mr Senz says that the same conclusion is demonstrated by the air bags having deflated before the accident. That, he says is a consequence of the failure of the extension arm/levelling rod caused by it having come adrift at its top anchor point. The air bags deflated before the accident: ergo the rod was adrift before the capsize. I accept Mr Senz’ opinion in that respect.
I find that the extension arm/levelling rod had come adrift from the upper anchor point - at about the rose joint - before the capsize: the failure of the relevant point of contact therefore preceded the capsize.

59 I should observe that the non replacement of the extension arm/levelling rod was not the only basis upon which the Judge had found that the parts were not damaged in the roll over. She accepted the opinions of Mr Senz and Mr Axup that inspection of the photographs showed that to be the position.

60 Mr Senz did not rely upon non replacement in his reports. Mr Branson in cross examination took Mr Senz to a note he had written upon the list of parts which appears to have been made available to him with his first instructions. On one page he had noted “no air valve”. He gave evidence:

Q. For what reason did you write that on that copy document.
A. I was looking to see whether or not the height adjustor valve for the suspension had been replaced.

Q. For what reason were you doing that.
A. If the rose joint had failed from overloading brought about by the accident, then it is a reasonable chance that an air valve would be replaced.
...
A. I was not able to find the - a new air valve in the parts list.

Q. Did you draw any conclusion from that, or not, please.
A. Well, either it wasn’t replaced and the old valve was put back on, or they had not put it on the quote.
...
Q. Did you or did you not come to any view, based on the absence of any record in the quotation of reference to repair of air valve, as to how this affected any opinion that you have about the capsize.
A. Well, it supported the view that the air valve was not damaged during the accident.

61 A difficulty arises in that Exhibit G includes a list of “additional parts on re-inspection”. On that list there is an item “Air Height Control Valve”.

62 Mr Bridge submits that, having regard to the note Mr Senz made, that must be a different valve. That argument depends upon Mr Senz having had the additional list when he made his note and that is by no means clear.

63 Mr Hoeben referred to the item in Exhibit G and said:-

...For what it’s worth your Honour...there is a reference at item 8 to the air height control valve but which one doesn’t know but that’s the thing that sits on top.

64 Mr Bridge takes the position that the air valve referred to in that exhibit is not the one in question and Mr Hoeben appears to accept that that is not known. The question was not explored at the trial and must be regarded as unclear.

65 It is agreed that there is no reference to levelling arms, extension rods or rose joints in the list. Having regard to Mr Senz’s note it occurs to me that the items might be regarded as part of an assembly and referred to as such for replacement purposes. This, however, is unclear especially as the parts list is very detailed.

66 As I have pointed out Judge Gibb’s finding as to the failure of the rose joint did not depend upon the question of non repair.

67 In my view no ground has been shown for interfering with Her Honour’s findings of fact as to the immediate cause of the roll over.

68 Ground 6 was referred to by Mr Bridge as the Makita Point. I doubt that the points sought to be made in the submissions derive any particular support from that decision, however, it is appropriate to refer to the statement of Heydon JA (2000-2001) 52 NSWLR 705 at 731 where he said:

The basal principle is that what an expert gives is an opinion based on facts. Because of that the expert must either prove by admissible means the facts upon which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based.

69 Here Mr Senz has given direct evidence that the photograph shows a rose joint. It is not to the point, so far as admissibility goes, that there may be other evidence relevant to the issue.

70 It was put in the written submissions that the use of other components and their position to assist in identifying the component in issue amounted to speculation and not expert opinion. Accordingly, it was put, Mr Senz’s evidence should have been rejected as relying upon deductive "logic" which amounted to speculation.

71 In C. Van de Ley N.V v Bamfords Ltd (1963) R.P.C. 61 Lord Reid said at 71:

Lawyers are expected to be experts in the use of English language, but we are not experts in the reading or interpretation of photographs. The question is what the eye of the man with appropriate engineering skill and experience would see in the photograph, and that appears to me to be a matter of evidence. Where the evidence is contradictory the Judge must decide but the Judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photograph in determining which of the explanations given by the witness appears to be most worthy of acceptance.

The case is not directly in point, because it was a patent case concerning a hayrake. The issue was anticipation and as Lord Reid had said:

The question was what the eye of the man with appropriate engineering skills and experience would see.

72 Nonetheless, the passage gives guidance on a wider basis. Certainly Meagher JA so considered when in Short v Barrett (CA, unreported, 5 October 1990) he made reference to part of the passage in dealing with the use made by a trial Judge of photographs in an occupier’s liability case.

73 In my view the use of other components in a photograph or series of photographs to identify objects in a photograph is an appropriate procedure. Upon occasion it may be a matter of common sense. In a case involving machinery parts, as here, it would normally require an expert to make the identification.

74 Mr Senz relied in part upon a diagram, which is exhibited, of a HAS series Hendrickson suspension whereas the vehicle was fitted with a HA series suspension. No significant difference was suggested other than that the rose joint was of a different type, a circumstance which it was conceded on the hearing before this Court was of no importance.

75 Mr Senz also relied in part upon his observations of trucks and their suspensions as he drove about his affairs. It was put that such observation was not a proper basis for an expert opinion as to which type of extension rod was fitted to the prime mover. As I have mentioned this issue was in the end of no significance. In any event I consider that appropriate observation by a suitably qualified person may well properly found the expression of an expert opinion.

76 The written submissions contain a general assertion that "the evidence offends numerous prerequisites of the law relating to admissibility as stated in Makita...…… Her Honour erred in accepting the evidence of Mr Senz......upon the basis that he did not satisfy the requirements to enable him to proffer an expert opinion”.

77 I have dealt with the specific matters raised in the submissions both written and oral. As to this assertion I am content to make the general observation that I have read the passages of transcript relied upon and do not accept that Judge Gibb erred in accepting Mr Senz’s evidence as that of an expert. She found, as on the evidence she was entitled to do, that Mr Senz had "relevantly expert opinion within the field of specialised knowledge constituted in training, study and experience".

78 It is convenient to deal with grounds 7 and 8 together. In the written submissions the second of the two substantive bases upon which the findings on liability were challenged was expressed as follows:

Her Honour’s conduct during the course of the trial coupled with Her Honour’s reasoning as displayed in her judgment in rejecting all evidence favourable to the appellant but accepting all evidence unfavourable to the appellant demonstrated Her Honour either failed to use, or palpably misused her advantage to the extent that the trail miscarried.

79 Before turning to the more detailed submissions which dealt with this assertion and related matters it is relevant to note that no application was made to Judge Gibb to disqualify herself on the basis of bias or otherwise.

80 Further, whilst reference is made to the tone used by Judge Gibb in relation to a number of criticisms of her conduct of the trial, there was no evidence from Counsel or his instructing solicitor nor was the tape recording of the evidence tendered (See Aardvark Security Services Pty Ltd v Ruzkowski (1996) 13 NSWCCR 1 per Handley JA at 17).

81 Before considering the criticisms made in respect of the Judge’s treatment of individual witnesses it is appropriate to make three observations of general application to my conclusions on this aspect of the appeals.

82 First, it is clear that the Judge took into account her observations of the witnesses whilst they gave, in most cases, quite lengthy evidence. The principles laid down in cases such as Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472 are applicable. Indeed this is accepted in the way the relevant grounds of appeal are framed.

83 Second, other Judges may have used more diplomatic language than Judge Gibb in expressing conclusions as to credit, however, this is a matter of style and not error.

84 Third, it is not correct to assert that the Judge accepted everything put for the respondents and rejected everything put for the appellant.

85 For example the Judge rejected the theory advanced by Mr Foster that the rear axle had been misaligned at the time of modification.

86 The Judge accepted Mr Axup and Mr Senz in terms I have set out. She had commented upon their failure to note the breakage of the Z leaf spring, however, considered that their credit remained intact. No doubt the Judge was assisted by the way in which each witness responded to the lengthy and rigorous cross-examination which took place.

87 Judge Gibb found Mr Griffiths, the expert witness called by the appellant, to be partisan, evasive and unimpressive. She also observed that he was very reluctant to concede anything that might be against his client’s interests in cross-examination.

88 My reading of the relevant portions of the evidence does not incline me to the view that the Judge misused the advantage of seeing and hearing Mr Griffiths rather to the contrary.

89 I do not consider it necessary to traverse the evidence as a few examples will suffice.

90 Mr Griffiths in his second report criticised the method by which Mr Axup had calculated the critical speed for the semi-trailer on the corner, yet when challenged in cross-examination he agreed that the method was an acceptable one.

91 His own calculations as to the critical speed produced a result significantly less than that of Mr Axup supporting his theory of excessive speed. Cross-examination established that the figures he used put the centre of gravity of the vehicle at an untenably high point.

92 Mr Griffiths later embraced the theory that the most probable cause of the accident was the fracture to the Z leaf spring on the trailer.

93 To overcome the difficulty in this theory that McKay said that the problem arose at the rear of the prime mover Mr Griffiths asserted that the driver would not be able to distinguish where it occurred.

94 This was not the view of McKay, a very experienced driver who had experience of trailer roll overs and of Mr Axup who considered that an experienced driver would be aware of such a matter.

95 Mr Griffiths, as the Judge found, had no relevant experience in driving vehicles of the type involved and did not hold a heavy vehicle licence.

96 Mr Griffiths dealt in cross-examination with some difficulties in relation to his first report by asserting that he had written it as "reactive" to Mr Axup’s report, a matter which does not appear from the report.

97 Mr Griffiths concluded in his second report that he had seen no evidence of the suspension collapsing before the accident.

98 However, as Judge Gibb noted:

Mr Griffiths proceeded on the basis that David Axup’s inspection of the truck and photographs did not record evidence of "grinding" style marks on any components which could have explained sparks allegedly observed by other drivers.
In that Mr Griffiths was in error - as he ultimately conceded. Mr Axup’s report contained a simple textual and photographic explanation.

99 Sparks were observed by another driver which Mr Axup explained as likely to have come from the mudguard being pushed down onto a tyre as the suspension collapsed. He considered that marks on the tyre he found supported that view.

100 In re-examination Mr Griffiths, in the Judge’s view, further reduced his credibility by introducing an alternative theory in respect of the sparks which in cross-examination he agreed was speculative and at odds with Mr Axup’s photographic record.

101 A reading of the cross-examination of Mr Griffiths, in my view, shows a reluctance to deal directly with the questions put to him. Whether that was an inherent trait or reflected his approach to the case is very much a matter of impression.

102 I shall come to more matters relating to Mr Griffiths in dealing with other grounds, however, I consider that the allegation that the Judge misused her advantage in respect of Mr Griffiths is not made out.

103 Judge Gibb found Mr O’Keefe, the appellant’s workshop foreman, an unimpressive witness who failed to bring an objective mind to the task. The written submissions put that this was inconsistent with her conclusion that he sought to be an honest witness. There is no necessary inconsistency between these two concepts. The Judge noted that Mr O’Keefe simply assumed that the work would have been done properly. She pointed out that he did not know what was done with the relevant vehicle.

104 Mr Harradine was also considered by the Judge to be an unimpressive witness who failed to bring an objective mind to the task. He, she considered, relied upon his faith in the job having been dealt with in accordance with the usual practice and was in obvious error as to the completion of signatures and verifications which were not as he expected to find.

105 The Judge found that Mr Harradine was honest in what he said but that his omissions were at the contrived end of the scale, rather impairing his apparent frankness and that he was very reluctant to concede anything that he considered might be adverse to the appellant’s interests.

106 Judge Gibb ascertained, when Mr O’Keefe gave evidence, that he and Mr Harradine had in the early days of the trial inspected a vehicle they believed to be the relevant one. She considered that the non disclosure of this fact, as she put it, raised significant concerns about his degree of frankness.

107 Mr Bridge had not lead from Mr Harradine, not considering it relevant at that stage, the fact of the inspection and no other questions were asked of him calling for its disclosure. In these circumstances I do not think that the Judge was entitled to use the omission as she did in her evaluation of Mr Harradine’s credit, however, when other factors are taken into account, together with the conceded limitations on the evidence Mr Harradine was able to give, I do not consider that the error had any significant effect.

108 Mr Bridge put that Judge Gibb was not entitled to find each of Constable Stringer and Mr Smith singularly unimpressive witnesses of very little credit.

109 Constable Stinger and Mr Smith, an RTA Officer, had attended the scene. They both obviously had a preconception that excessive speed was the cause of the roll over.

110 Mr Bridge said in address that the Judge was perfectly entitled to consider them mistaken and clearly wrong. He conceded that he could not reinstate them and did not try. He did, however, put that the Judge’s conclusion as to the witnesses, as expressed by her, was an example of the way in which the Judge has "blackened all of the witnesses called by or on behalf of the defendant".

111 I have earlier commented upon the language used in dealing with credit. In view of the concession made by Mr Bridge I do not need to examine the evidence of these witnesses further, beyond observing that the Judge commented, with convincing illustration, upon the reluctance of Mr Smith to make appropriate concessions.

112 The written submissions draw attention to the fact that Judge Gibb accepted McKay as an honest and straightforward witness despite the fact that "he may have been rather less than frank in the steps taken to obtain and maintain his Western Australian driver’s licence". The Judge clearly considered this essentially peripheral matter and then reached her conclusion as to McKay’s credit having heard and seen him in the witness box over an extended period.

113 The written submissions note that Judge Gibb accepted Mr Power’s evidence as, amongst other things, corroborative as to speed and that she found him an honest witness. This despite the fact that he had earlier made a statement that his truck was 400 metres behind McKay’s at the time of the accident. Mr Power gave evidence which, having seen and heard him, Judge Gibb accepted established that the statement was wrong.

114 The Judge set out in her judgment in considerable detail how she assessed the witnesses, those she accepted in part or in whole, and those she did not. Taken as a whole I do not consider that there can be demonstrated any failure to use or misuse of the advantage of the trial Judge.

115 It was put in the written submissions that Judge Gibb conducted the trial as an inquisitorial rather than an adversarial process and that as a result the trial miscarried.

116 Mr Bridge supported that contention by reference amongst other things, to the number and nature of questions asked by Judge Gibb during the course of the trial.

117 During the cross-examination of Mr Harradine by Mr Sheldon he asked 229 questions and Judge Gibb asked 75. When Mr Royle cross-examined he asked Mr Harradine 75 questions and the Judge asked 27.

118 The matter to which Mr Bridge went in some detail was the cross-examination of Mr Griffiths. During Mr Royle’s cross-examination he asked 359 questions and Judge Gibb asked 221. During Mr Sheldon’s cross-examination he asked 381 questions and Judge Gibb 7. During the whole cross-examination 740 questions were asked of which the Judge asked 228.

119 Mr Bridge submitted that the Judge had taken over the conduct of the cross-examination.

120 We were supplied with a list of the transcript references upon which Mr Bridge relied and I have read all of them. Mr Bridge dealt specifically in address with a number of the passages and I shall go briefly to some of them.

121 Before I do that I make the observation that a reading of the references left me with a firm impression that it was indeed difficult to get Mr Griffiths to deal directly with the question being put to him. The general nature of the questions were attempts to ascertain Mr Griffiths’ position on particular issues or questions rather than any attempt to press a particular view or position upon him.

122 A number of questions put by Mr Royle were followed by a question from the Judge:

Q. Mr Griffiths, simple question, did you have more information about the modification.
A. Yes, I did.

123 On the basis of what had gone before I see no proper objection to that question.

124 There was a passage in the cross-examination dealing with an issue relating to the question of sparks in which Judge Gibb asked some 21 questions and also interrupted Mr Griffiths on a number of occasions. Whilst it is clear that the Judge was endeavouring to obtain Mr Griffiths’ view on the probable cause of the sparks and the sequence of events, I am of the view that the Judge would have been better advised to have been more limited in her intervention at this point.

125 At one point the Judge asked:

Q. Mr Griffiths you’re going to have to pick a fence and sit on it, that the suspension collapsed before, during, after or don’t know.
A. Just before or during, considering that in isolation.

126 This hardly sounds an appropriate question to an expert, however, it is understandable in a context where there were a limited number of possibilities and it was proving difficult to get Mr Griffiths to make clear which one he favoured or whether his position was that he did not know.

127 Mr Bridge criticised a statement by the Judge "Mr Royle, I think by the end of this we’re all going to be confused, I think you’re going down Mr Griffiths’ path, one at a time please".

128 This observation was made, however, after Mr Royle had asked a wrapped up type question which did not assist to clarify matters. His question involved a number of concepts just as did the preceding answers by Mr Griffiths.

129 As I read these passages the Judge was trying to get both Counsel and witness to simplify and clarify their questions and answers. I consider that, in the context, she was entitled to do that.

130 Soon after this exchange the following occurred:

Bridge: I accept that, your Honour. Could I raise one other matter? I am reluctant to do so but we’re having your Honour asking a lot more questions than Mr Royle. Now, Mr Royle and Mr Sheldon, without being too overly pleasant to them, they are more than capable of doing so.
Her Honour: They are quite competent to run their own case. I am having extraordinary difficulty in understanding the answers I’m getting.
Bridge: I just raise the concern.
Royle: I can indicate for my part I am more than happy for your Honour to ask the questions if it brings to light the evidence in your Honour’s mind better than I asking the questions. I just indicate that.

131 Mr Bridge thus did raise with the Judge the issue of the number of questions but he did not suggest any other vice in them. It is not to the point that Mr Royle did not object.

132 Mr Griffiths was asked a question based upon a number of assumptions. The question referred to the suspension and collapse. I should have thought that was, in the context, clear enough; however, Mr Griffiths supported by Mr Bridge sought clarification and the Judge said:

Her Honour: "Collapsed" means broken, not there, smashed, stolen and any other verb you care to intersperse. We will come back to how it happened. I don’t think Mr Griffiths had any difficulty with the word “collapsed”, did you Mr Griffith? We are not asking how, we are asking fact, you don’t have any difficulty with the word "collapsed"?

133 As Mr Bridge put the observation was not courteous. It no doubt expressed a measure of, in my view not unjustified, exasperation.

134 The same assumptions were put and there was an unfortunate fault in the recording equipment. The Judge said after resumption and a brief account of where the evidence had got to:

Now, it may be that as a matter of fairness Mr Griffiths should see the transcript before he goes anywhere further on assuming the same four, because I suspect Mr Griffiths’ recollection may have been a trifle distracted of late. So unless you are to (take) a more simple path, we might resume tomorrow with the transcript, so that Mr Griffiths can find out what the four assumptions were before he was sirened out.

135 It is common place for a Judge to form the view that a witness, particularly during cross-examination, is beginning to tire and become distracted and there is nothing I can see worthy of criticism in the Judge’s actions at this point. There was some speculation as to the reference to "sirened out". I think it clear enough that the Judge was referring to the interruption of recording whilst Mr Griffiths was giving his answer. Indeed the transcript records the use of a new tape thereafter. I would think it likely that there had been an audible warning of completion of the earlier one.

136 Complaint is made of the warning given by the Judge to Mr Griffiths, in unexceptionable terms, of the consequences of still being under cross-examination. There is no substance in this complaint.

137 During some cross-examination relating to the calculation of critical speed the Judge asked a question:

Her Honour: I thought Mr Axup had used a different model, and we went down this discussion yesterday, it was delightfully short because you said he had used a different approach and it was a perfectly respectable approach.

138 Mr Bridge put that the reference to "delightfully short" was gratuitous. This is to misunderstand the reference. The Judge was referring to the short and simple method of calculating critical speed used in Mr Axup’s report as contrasted with the considerable more complicated calculation favoured, initially at least, by Mr Griffiths.

139 Judge Gibb did press Mr Griffiths for an answer in relation to an aspect of the method of calculation in the following passage:

Q. Mr Griffiths, when you wrote that report did you then hold the view that you told me about yesterday morning, that it was a perfectly respectable approach that Mr Axup had taken, albeit that you had used a different variable?
A. What I said was, and I don’t recall my exact words . . .
Q. Did you hold the view, yes or no?
A. What I was trying to say was that it’s an alternative way of approximating things . . .
Q. Did you hold the view or not then?
A. It’s an acceptable alternative . . .

Q. Mr Griffiths I will ask you only once more, did you hold the view then or not?

OBJECTION (BRIDGE). CROSS EXAMINING WITNESS.
Q. Mr Griffiths, in October 1998, what view did you hold?
A. I held the view that the proper way to do this was to do a computer model, and to obtain all the variables and to work out a speed in a dynamic sense.

140 When Mr Bridge objected the Judge did alter the form of her question, however, in neither case did she seek to force a view upon Mr Griffiths.

141 In oral submissions Mr Bridge pointed to an occasion on which Mr Royle, Counsel for McKay, asked Mr Griffiths would he care to do an exercise in calculation which had been referred to. Mr Griffiths said that on the spot he would not. The following occurred:

Her Honour: Mr Griffiths may need a calculator. Do you have a calculator and a pen and paper.
A. I think I have. I don’t know.
. . . . . . . .
Her Honour: Do you have some pen and paper and whatever you need, Mr Griffiths. If were going to do maths on the spot you might well have your bits of paper.
A. Look, I don’t think it’s reasonable to ask me to do that here. I’ll do it during the lunchtime break or something.

142 Mr Royle pressed the matter, Mr Bridge put that it would be oppressive to force Mr Griffiths to do the calculations in the Court environment and the Judge offered an adjournment for them to be done.

143 There is nothing unusual in an expert doing calculations in the witness box. So far as appears from the transcript, there is no reason to consider that the Judge was not being helpful rather than difficult.

144 During Mr Sheldon’s cross-examination there were very few questions from the Judge. It may be that by then the Judge had a sufficient understanding of the position taken by Mr Griffiths upon the relevant issues. It may be that Mr Sheldon had learnt from Mr Royle’s difficulty and asked shorter and more direct questions of Mr Griffiths. Whatever the explanation the absence of questions hardly supports Mr Bridge’s contention that the Judge had taken over the cross-examination.

145 Mr Bridge relied upon the principles discussed in Aardvark Security Services Pty Ltd v Ruszkowski (1996) 13 NSWCCR 1 a case which, amongst other things, dealt with allegations of excessive and inappropriate questioning by the trial Judge. Handley JA said at 18:

It is desirable that the trial Judges, as a general rule, should refrain from cross-examination as opposed to mere clarification of existing evidence, until after the witness has completed his or her evidence-in-chief and been cross-examined by the Counsel or solicitor appearing for the other party. Judicial restraint during evidence-in-chief and cross-examination will minimise the risk of the trial miscarrying and the Judge being seen as apparently biased.
Mahoney JA said at 14:


It was submitted for the appellant that the trial had miscarried because the trial judge had interfered excessively in the questioning of witnesses. What a judge does during the course of the examination of witnesses will depend upon considerations such as the need to clarify answers, remove obscurities, and the like and the need to ensure the fair conduct of the trial. A Judge must, of course, remain conscious of his role of judge and the need to preserve both the substance and the appearance of what that involves. Ordinarily, justice will be more likely to be achieved if the questioning of witnesses is left to the parties. But circumstances may arise in which it will be appropriate that the judge intervene in the questioning or that he himself ask questions. Witnesses may become confused or overborne or otherwise evidence may be given which, from the transcript alone, may be misleading or, at least, not give a true picture of the effect of what was said. I would not exclude the possibility that, subject to appropriate limits, a judge should intervene to ensure that the trial proceeds justly and will be seen to have done so.

Experience suggests that ordinarily this may best be done at the end of the examination of a witness. But circumstances may require that the judge intervene or ask questions at other times.
Kirby P, who was in the minority in considering that a new trial should be ordered, said at 9:

It is a matter of judgment as to when a judge crosses the line which divides permissible case management and desirable disclosure of tentative thinking from such undue interference as creates a real danger that the trial becomes unfair. Cf E HCochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (CA). In this case that line was crossed. The questions were far too numerous; inappropriately asked before the representatives of the parties had had the opportunity of leading or questioning witnesses; asked in a form, frequency and consistency which suggested the direction to which they were targeted; and in at least one case, asked in terms that involved a plain departure from the neutral performance by the judge of his judicial functions.

259 Judge Gibb arrived at the figures she awarded for past and future loss of earning capacity, although she did not so express it, by finding that McKay had accepted an offer of employment as a truck driver from a Mr Embery, that he would have in fact commenced such employment and continued it to the time of trial and beyond to age 65. She considered that if McKay had changed employment it could have been to one returning the same or greater earnings and that 15 per cent was an appropriate contingency allowance for, amongst other things, the possibility that things would change in the future as to employment.

260 The appellant’s submissions do not challenge the calculations by which the sums awarded were arrived at, but rather the correctness of the above approach.

261 McKay had worked as a truck driver for a great many years. At the time of the accident he was driving as a casual driver for TNT and earning, it would seem, about $436 net per week. For some time prior to taking up that employment he had operated his own road train as a contractor to TNT. That operation ceased when a regular customer changed to the use of rail transport.

262 On 5 June 1995 McKay returned to some work. In October 1996 he commenced employment with ID Transport Pty Ltd performing clerical duties at a wage of $725.35 net per week. He was later promoted to a more managerial role.

263 The appellant’s submission is that the claim for loss of earnings was not made out beyond 5 June 1995, it being put that after that date McKay earned as much as or more as he had earned in earlier years.

264 Alternatively, it was put that the loss of employment with Mr Embery should only be seen as loss of a chance with an appropriate allowance for that loss of a chance in the order of $20,000 to $30,000.

265 As a further alternative, it was submitted that future economic loss should be assessed on the basis of lack of capacity alone to be reflected in a very small buffer or, more consistently with principle, no award.

266 These submissions all fail if Judge Gibb’s finding as to prospective employment with Mr Embery and its consequences are not overturned.

267 McKay, Mr Embery and Mrs McKay all gave evidence which supports those findings and Judge Gibb accepted that evidence. I am unable to find any proper basis for coming to a different conclusion than that reached by the Judge on this issue.

268 Reference was made to "the Plaintiff’s own evidence concerning his future in the trucking industry and his past performance". However, after hearing the witnesses the Judge said:

Likewise, employment in the trucking industry may or may not be precarious generally. But Mr McKay had been working in that industry continuously from when he was about 16 until the day of the accident when he was 48 - some 32 years. He enjoyed driving and for a driver of his skill level, employment was not uncertain.

269 Mr Embery gave evidence that it was very hard to get good drivers. He also gave evidence that the truck which he proposed to have McKay drive was still being operated by his business. The Judge found, as the evidence supports, that McKay is very work focused.

270 In my view the submissions made do not support a conclusion that the damages awarded in respect of loss of economic capacity were excessive or awarded in error.

271 I consider that the appeal in respect of damages should fail.

Orders

272 I propose the following orders in each appeal:

a. Appeal dismissed.

b. Appellant to pay the respondent’s costs.

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