Strahan v TENISTA Pty Ltd
[2016] WADC 76
•20 MAY 2016
STRAHAN -v- TENISTA PTY LTD [2016] WADC 76
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 76 | |
| Case No: | CIV:2064/2013 | 13-16 APRIL 2015, 13 JANUARY, & 4 MARCH 2016 (FINAL WRITTEN SUBMISSIONS) | |
| Coram: | STAVRIANOU DCJ | 20/05/16 | |
| PERTH | |||
| 36 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed Judgment for the defendant | ||
| PDF Version |
| Parties: | ALAN BRIAN STRAHAN TENISTA PTY LTD |
Catchwords: | Torts Negligence Duty of care Independent contractor Personal injury Whether common law duty of care Application of Civil Liability Act 2002 Liability under Occupational Safety and Health Act 1984 Occupiers' Liability Act 1985 Turns on own facts |
Legislation: | Civil Liability Act 2002 Occupational Safety and Health Act 1984 s 19(1), s 19(4) Occupiers' Liability Act 1985 s 2, s 5 |
Case References: | Kerr v Minister for Health [2009] WASCA 32 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
TENISTA PTY LTD
Defendant
Catchwords:
Torts - Negligence - Duty of care - Independent contractor - Personal injury - Whether common law duty of care - Application of Civil Liability Act 2002 - Liability under Occupational Safety and Health Act 1984 - Occupiers' Liability Act 1985 - Turns on own facts
Legislation:
Civil Liability Act 2002
Occupational Safety and Health Act 1984 s 19(1), s 19(4)
Occupiers' Liability Act 1985 s 2, s 5
Result:
Plaintiff's claim dismissed
Judgment for the defendant
Representation:
Counsel:
Plaintiff : Mr G T Stubbs
Defendant : Mr A P Hershowitz
Solicitors:
Plaintiff : Shine Lawyers
Defendant : SRB Legal
Case(s) referred to in judgment(s):
Kerr v Minister for Health [2009] WASCA 32
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
- STAVRIANOU DCJ:
Introduction
1 The plaintiff brings this action against the defendant seeking damages for injuries suffered by him in the course of acting as a vehicle pilot for a load being transported by the defendant. Claims are made in negligence and for breach of statutory duty imposed by the Occupational Safety and Health Act 1984 (OS & H Act) and the Occupiers' Liability Act 1985 (OLA).
2 The defendant is a heavy haulage company. In October 2011 it was required to transport two large Caterpillar 785 dump trucks (the dump trucks) from the premises of WesTrac in Perth to Koolan Island near Derby for Mt Gibson Mining Company Ltd (the trip). Each dump truck was loaded onto a trailer which was towed by a prime mover truck. K & G Pilots Pty Ltd (K & G) was engaged by the defendant to provide road pilots for the trip.
3 The plaintiff's case is that during the trip he stepped off the rear of one of the trailers onto a metal stool, fell and injured his right knee.
4 Liability and quantum are in issue.
5 The defendant denies that it owed the plaintiff a duty of care, denies negligence and denies breach of statutory duty.
Background
6 The background is essentially non-contentious. The following summary is drawn from the written closing submissions of the parties or from undisputed evidence.
7 The defendant trades under the name Peter Tippett Haulage. As at October 2011 it operated a fleet of vehicles which included prime movers, dollies and trailers.
8 On or about 15 October 2011, the defendant engaged K & G. The plaintiff's father, Mr Kevin Desmond Strahan (Mr KD Strahan) is one of the proprietors of K & G.
9 The vehicles for the trip comprised two pilot vehicles (front and rear), two prime movers together with attached trailers and an escort (the convoy). Each trailer was what was described as a flat bed. A dolly connects the prime mover to the trailer.
10 Mr Warren Stevens (often referred to as Rabbit) and Mr David Shipard are truck drivers employed by the defendant and drove the prime movers towing the trailers.
11 The defendant used its trailer MD72 with registration number 1TJE577 (trailer T72) and trailer MD73 with registration number 1TJA358 (trailer T73) for the trip. The defendant's delivery dockets for the dump trucks identify the drivers. In the case of what is described as Float 73 the driver is 'Rabbit'. In the case of Float 72 'Daniel' is nominated as the driver. In each docket there is a reference to 'one 785'. Mr Stevens was the driver of the prime mover which pulled trailer T73. Mr Shipard was the driver of the prime mover which pulled trailer T72.
12 To the rear of trailer T73 is a metal stand which is in the shape of an I-beam (the stool) and which is housed in a metal casing attached to the trailer. On occasions during the evidence and in this judgment the stool is referred to as a stand. The stool is heavy and weighs approximately 30 kg. When it becomes necessary to widen a trailer's platform (to accommodate a load) the stool is used. It sits on the ground underneath the trailer's bumper and takes the weight thus enabling the platform and the trailer to be widened.
13 There is also a stand to the rear of trailer T72. It is housed in a different casing to the stool to the rear of T73, although used for the same purpose.
14 To the rear of each trailer and on each side are two hydraulically operated ramps which are used in the loading and unloading process.
15 The plaintiff acting as one of the pilots drove a Ford Transit Van which was described as being between a normal passenger car and a four-wheel drive. The second pilot for the trip was Mr Doug Murdoch. There was a third pilot who only accompanied the convoy for a short distance.
16 Each dump truck was loaded in such a way that its wheels would hang over each side of the trailer.
17 Prior to departure the defendant was aware that at the Willare River Bridge the convoy would be required to stop. This was because the bridge is too narrow to allow the loaded trailers to cross. It was therefore necessary to raise the wheels of the dump trucks above the height of the bridge safety barriers to enable the convoy to pass.
18 The process of raising the dump trucks (known as stooling) involves raising the trailers to their full height. Stools are used in this process but they are different to the stool the plaintiff alleges he stepped onto. In the stooling process metal ramps (not being the loading and unloading ramps earlier referred to) are used as well as blocks. The ramps and blocks are placed under the dump trucks before then lowering the trailers. The dump trucks are thus left in an elevated position and sitting on ramps. After a bridge is crossed a 'de-stooling' process occurs which is effectively the reverse of stooling. The entire process takes between two to three hours.
19 On 20 October 2011, the convoy pulled into a truck bay situated approximately 15 km to 20 km before the Willare Bridge (the truck bay) to carry out the stooling process. The escort did not stop at the truck bay and drove on to Derby. It is during the stop at the truck bay that the plaintiff alleges he was injured.
20 When the stooling process was complete, the convoy drove to the Willare Roadhouse. The plaintiff spent the night together with Mr Stevens and Mr Shipard at the roadhouse. The next day the convoy drove to Derby where the dump trucks were unloaded. Subsequently, the plaintiff accompanied Mr Stevens on the drive back to Perth.
The pleadings and issues
21 There is no issue that there was an agreement between the defendant and K & G for piloting services for the trip.
22 The plaintiff alleges that pursuant to the agreement he was to:
i. assist the Defendants employees, servants and agents to, amongst other things, lift the load on the vehicle
ii. act on Defendants employees, servants and agents instructions or directions in assisting the Defendants employees, servants and agents
23 It is denied there was any contractual obligation on the plaintiff to assist the defendant's employees in stooling and unstooling the load or assisting the defendant's employees with any of their duties. The defendant's case is that the plaintiff was engaged to provide road piloting services only and was not required to gain access to the trailer and assist with the load.
24 The plaintiff's case is that the defendant, its employees or agents owed him a common law duty of care. The precise content of the duty of care is not pleaded. However, it was submitted that the duty was akin to that which would have been owed to the plaintiff had he been an employee, that being the duty to take reasonable care to avoid exposing employees to unnecessary risks of injury and to provide the plaintiff with a safe system of work.
25 The occupier's liability claim relies upon the definition contained within s 2 of the OLA in support of the contention that the truck and trailer were premises. It is asserted that the defendant was required to take such care as in all the circumstances of the case was reasonable to see that the plaintiff did not suffer injury or damage by reason of any danger to the plaintiff due to the state of the premises or anything done or omitted to be done on the premises. The statutory claim pursuant to the OH&S Act relies upon the truck and trailer being a workplace as defined in that Act.
26 The defendant denies that it owed any common law or statutory duty of care to the plaintiff.
27 The plaintiff pleads in the amended statement of claim the circumstances by which he came to be injured as follows:
3. On 20 October 2011, at approximately 12:10pm
(a) Pursuant to the Agreement the Plaintiff was piloting a load ('the Load') being hauled by the Defendant on the trailer ('the Trailer') part of the vehicle;
(b) The Plaintiff, who was performing his work duties was dismounting from the Trailer when he stepped on a stool ('the Stool'), being a piece of equipment attached to the Trailer;
(c) Upon the Plaintiff stepping on the Stool, the Stool came loose and caused the Plaintiff to fall to the ground ('the Accident');
(d) The Stool came loose as a result of the latch which held the Stool being faulty ('the Latch').
4. At all material times the Defendant, by its servants or agents:
(a) Knew or ought to have known that the Latch was faulty;
(b) Knew or ought to have known that the Stool was dangerous to use and posed a foreseeable risk of injury due to the faulty latch;
29 The plaintiff's case is that there were specific precautions which the defendant should have taken and that a reasonable person in the defendant's positon would have taken the precautions.
30 The particulars of negligence allege the defendant:
(a) Failed to maintain the Trailer such that the Latch was not faulty;
(b) Failed to inspect the Stool, the Latch and the Trailer on a regular basis, adequately or at all;
(c) Failed to have a system in place to inspect the Stool, the Latch and the Trailer on a regular basis;
(d) Allowed the Trailer to be operated knowing that the Latch was faulty;
(e) Failed to warn the Plaintiff that it was dangerous to use the Stool because the Latch was faulty;
(f) Failed to supervise the Plaintiff in the use of the Stool or the trailer;
(g) Failed to ensure that workers attending to the Load were provided with a safe means of accessing the Load on the Trailer; and
(h) Failed to take any or any reasonable care for the safety of the Plaintiff.
(i) Failed to lower one or more of the trailer ramps to provide the Plaintiff with access to the trailer.
31 The particulars of breach of statutory duty allege the defendant:
(j) Failed to take such measures as were practicable to ensure that the trailer, or the means of access to or egress from the trailer were such that the Plaintiff was not exposed to hazards.
(k) Failed so far as was practicable to provide and maintain a working environment in which the Plaintiff was not exposed to hazards.
(l) Failed so far as was practicable to provide and maintain the workplace, plant, and systems of work such that the Plaintiff was not exposed to hazards.
(m) Failed so far as was practicable to provide such information, instruction, and training to, and supervision of, the Plaintiff as was necessary to enable the Plaintiff to perform his work in such a manner that he was not exposed to hazards.
(n) The Plaintiff repeats particulars a-i above
32 The plaintiff in his closing written submissions contended that in relation to the foreseeable risk of injury referred to in par 4(b) of the amended statement of claim (above) the use of the stool, whether it had a latch or not, and whether or not it was defective, to mount and alight from the trailer was dangerous and posed a foreseeable risk of injury. Reference was made in particular to the width of the stool, lack of handholds, height and rounded bottom of the stool. This submission was not consistent with the plaintiff's case in negligence at trial which was there was a stool, which was unsafe for use because it had a defective or faulty latch.
33 The defendant denies that the accident as defined in the amended statement of claim was caused by its negligence and/or breach of statutory duty.
34 The defendant pleads that the plaintiff was not permitted nor required to climb onto the trailer as he was only engaged to provide road piloting services. Further, the defendant contends that if the plaintiff climbed onto the trailer as alleged (which is denied) that he did so without the permission or authority of the defendant and that in any event there was a safe and proper means of alighting from the trailer which did not expose the plaintiff to a foreseeable risk of injury.
35 There is a plea of contributory negligence. It is alleged that the plaintiff failed to take sufficient precautions for his own safety in two ways: first, by standing on a support stand for the trailer when that support stand was not designed to be stood upon; secondly, as a pilot he should not have been assisting to lift the load on the truck.
36 The major issues in relation to liability may be summarised as:
1. What were the terms of the agreement between the defendant and K & G for the provision of road piloting services?
2. Did the defendant owe a duty of care to the plaintiff and, if so, what was the content of that duty?
3. Did the defendant's employees direct, instruct or require the plaintiff to assist with the stooling process on 20 October 2011?
4. Did the plaintiff fall from the trailer as alleged by him?
5. Was there a breach of any duty of care or statutory duty?
37 The plaintiff's case is that in the alleged accident he suffered injury to his right knee. The plaintiff delivered particulars dated 12 May 2015 of treatment, pain and suffering, loss of enjoyment of life, ongoing disabilities, past and future loss of earning capacity ,special damages, past and future medical treatment, travelling and past and future gratuitous services. The principal damages issue concerns loss of earning capacity and, in particular, retained capacity. The plaintiff's case is that he is unlikely to be able to work again in the future. The defendant contends that the plaintiff has a retained capacity to undertake full-time employment as a clerk, sales representative, security officer, load operator or truck driver.
The evidence
Plaintiff's case
The plaintiff
38 The plaintiff was born on 27 February 1972. He obtained a Certificate of Secondary Education and at the age of 22 years began a career in the police force. He worked at a number of different stations and for a time was an acting sergeant. His duties included ensuring briefs for prosecution were prepared to a high standard.
39 On 30 October 2010 the plaintiff left the police force and began working for K & G.
40 The plaintiff gave evidence that in October 2011, he received a telephone call from Mr KD Strahan. In the call he had told the plaintiff that there were 'two 785s' under police escort to take to Derby. It was his evidence he was told that 'the job would require the loads to be stooled, which means they are to be lifted, prior to the single lane bridges and that the - Graham Seymour, the manager of Tippett's, had asked that they needed a pilot to assist, not necessarily me, but a pilot to assist'. The plaintiff's evidence was that he was to receive two days' pay at a rate of $250 per day for the stooling and unstooling. It was the plaintiff's evidence that that he had never done stooling before the trip but he had done very similar things.
41 It was the plaintiff's evidence that at the truck bay he had spoken to Mr Shipard and Mr Stevens. Mr Shipard asked him 'to take the stuff off the back of the trailer'. The plaintiff had unstrapped the items and then taken them from the trailer. The items in question included blocks and chains.
42 The plaintiff was asked about instructions. The evidence was:
All right. Now, prior to you undertaking this task of stooling the dump truck, what instructions, if any, were given to you by the driver? – Before we started stooling up, David and – and Warren said to me, 'Oh, so you've been booked to help?' I said, 'Yep'. So they said, 'All right. We'll get on with it'. That was it. There was no instructions.
43 It was the plaintiff's evidence that in the stooling process Mr Stevens and Mr Shipard had stepped on the stool to get up on to the trailer and had got off the trailer by stepping down onto the stool. The plaintiff's evidence was that he had adopted the same method. It was his evidence there was no other method provided to get up on to the trailers.
44 In his evidence the plaintiff described that the truck on the trailer being towed by Mr Shipard was initially stooled. Mr Shipard drove it forwards after the process was complete and the process then began in relation to Mr Stevens' trailer.
45 The plaintiff gave evidence that what he did in relation to stooling for the second truck was the same as for the first one. He said he got onto the back of the trailer to undo the securing chains. It was his evidence that during the lifting process when blocks were required underneath the dump truck he would get onto the back of the trailer and position the blocks. He said he would then get off the trailer to position the blocks on top of the ramps.
46 It was the plaintiff's evidence that when the stooling was complete Rabbit (Mr Stevens) has said to him, 'Can you put that shit on the back?'. At the time Mr Stevens had pointed at the ramps used during the stooling process. The plaintiff stood the ramps up and then put them onto the back of the trailer. It was his evidence that the ramps needed to be secured and it therefore was necessary for him to get up and down off the trailer. It was the plaintiff's evidence that there were also wooden blocks used in the process that he had picked up and also put on the back of the trailer.
47 The plaintiff's evidence was that when all of the equipment was strapped down he went to get off the trailer. He said that as he stood on the stool it fell away from the trailer. He described that his heel was at the back of the stool and there was only a very narrow section (about 6 inches) that he could put his foot onto. He described the stool having fallen '15 degrees, I guess or maybe 20' and that he had 'off-balanced' and had fallen awkwardly on his right foot to the ground a distance which he estimated to be between 600 mm to 700 mm.
48 The plaintiff gave evidence that when he fell to the ground he felt instant pain and could not put much weight on his right knee. It was his evidence he looked at the stool and it was 'kicked outwards away from the trailer'.
49 It was the plaintiff's evidence that after he had fallen Mr Stevens had spoken to him and said, 'You hurt yourself, didn't ya?'. The plaintiff replied 'Yeah, I did'. It was his evidence Mr Stevens looked at the stool, which was facing backwards. The plaintiff's evidence was that Mr Stevens gave it a kick to kick it back in to the spot and said, 'Yeah, that bloody thing's been broken for a couple of years'. The plaintiff's evidence was that Mr Stevens asked him if he wanted to be taken to town. The plaintiff's evidence was that he did not know how badly he was injured but it was hurting. The plaintiff's evidence was that he said, 'Well – we're going – we're going there, anyway, so might as well go'.
50 The plaintiff was asked about the method by which the stool from which he fell was retained in position. It was his evidence that 'on most of them, there's a bit of a keeper that stops them flopping around'. He also described having seen an 'occy strap' or piece of string used as a restraining device. The plaintiff was asked about how the particular stool was retained in its carrier. It was his evidence that 'there's a bit of a keeper latch sort of thing that stops them from flopping around'. It was his evidence that he noticed the latch when he had got up from the ground after falling. The latch appeared to him to be bent. He said that on each trailer the mechanism was different. He said on the particular trailer he had fallen from there was a piece of flat bar metal.
51 The plaintiff gave evidence that he did not know where Mr Shipard was when he fell but said that he probably was at the front of the trailer.
52 The plaintiff's evidence was that he had driven to Derby with the convoy. Upon arrival he went to the caravan park and then to the hospital. It was his evidence that at the hospital he was told it was too busy for him to be seen and he was asked to see if he could make it to Broome. The plaintiff gave evidence that ultimately he decided to travel back to Perth acting as an escort for Mr Stevens. The plaintiff's evidence was that his knee was very sore during the return trip.
53 The plaintiff gave evidence that when he returned to Perth he was having difficulty mobilising because of the condition of his knee. He said he was unable to do any lifting or mow the lawn and was essentially only able to sit and not move around too much. The plaintiff was referred to an orthopaedic surgeon by his general practitioner and in December 2011 had the first of four operations on his knee.
54 The plaintiff gave evidence that he continues to take painkillers and attends his general practitioner periodically for review. He gave evidence that he is restricted in carrying out a range of social, recreational and sporting activities because of his injury.
55 The plaintiff gave evidence that his only employment is for two to three hours a month when he does some computer work for his father.
56 The plaintiff's evidence was that subsequent to his first orthopaedic procedure his wife had provided services for 'two or three maybe' hours per day. He said after that it was a little bit less and continued after two weeks probably no more than an hour per day.
Kevin Desmond Strahan
57 Mr KD Strahan gave evidence that he and his wife had owned and operated K & G for a number of years. He described his responsibility as being 'to get the pilots there on time where they're meant to be and they then bill me for the job. I bill the client'.
58 Mr KD Strahan gave evidence that in October 2011 he was telephoned by Mr Graham Seymour who was the defendant's manager. He said Mr Seymour asked for three pilots to be provided one of whom was to only travel part of the way. He said that Mr Seymour made a specific request for one pilot to help with the stooling. He had known Mr Seymour for a number of years and there had, on his evidence, never been any problems in the past.
59 It was Mr KD Strahan's evidence that after the conversation with Mr Seymour he telephoned the plaintiff and asked him to be one of the pilots for the entire trip and 'to give them a hand with the stooling'.
60 Mr KD Strahan's evidence was that he handwrote job sheet number 6436 dated '15/10'. He said the document could have been produced a few days before '15/10'. He explained the reference to the date was the date the job was ordered for. Under the heading 'Load Details' there is handwritten '2x785'. When questioned concerning the absence from the job sheet of a reference to stooling he said that he would not necessarily include that detail on the job sheet.
61 It was Mr KD Strahan's evidence that subsequent to the work being done K & G received an invoice dated 15 October 2011 from the plaintiff. On 15 November 2011 K & G had sent an invoice to the defendant which was paid on or about 24 February 2012. The invoice is particularised and includes a charge of $1,200 described as 'Stooling and unstooling Willare platform day'.
62 Mr KD Strahan was asked in cross-examination about the conversation which he said he had with Mr Seymour. He gave evidence that most of the time the conversations were very brief and that he would say, 'Can you get me three pilots at – or two plus one at WesTrac to go to Derby? Can one of them give the drivers a hand to stool?'. It was his evidence that most of the time that was all that was normally discussed.
63 Mr KD Strahan agreed in cross-examination that his recollection as to what was discussed was based on past history and 'what I've invoiced'. He said that he could get over 200 phone calls a day and he could not remember every telephone call. When pressed as to his memory concerning who had called him he repeated that he received many calls a day.
64 When asked about requests made by him for the plaintiff to do work as a pilot for the defendant Mr KD Strahan said he could not remember and added 'we do that many jobs'.
65 Mr KD Strahan gave evidence that 99% of the time he dealt with Mr Seymour when dealing with the defendant. It was his evidence that he did not think that the defendant had made a previous request of him for anybody to assist with the stooling. However, it was his evidence that he had done it many times with others.
Belinda Jane Strahan
66 Belinda Jane Strahan is the plaintiff's wife. She gave evidence that before the plaintiff injured his knee he would attend to the heavier work required around their home in Pinjarra including the fencing of the property.
67 It was Mrs Strahan's evidence that before the plaintiff left for the trip to Derby he was 'healthy, normal'. Upon his return she saw he was limping and she had taken him to see the doctor. It was Mrs Strahan's evidence that the plaintiff was not able to walk properly and 'didn't do anything except rest his leg'.
68 It was Mrs Strahan's evidence that following his surgical procedures she would assist the plaintiff with toiletries and other household duties. She said the assistance she initially provided was for four to five hours a day. She said she now does not provide any assistance to him.
69 Mrs Strahan gave evidence that after the plaintiff injured his knee she took over the heavier maintenance required to be done on the property. She described a role reversal resulting in her spending two or three hours a week on duties the plaintiff had done before being injured. The plaintiff had become more an advisor for any of the heavier work.
70 Mrs Strahan gave evidence that the plaintiff was now restricted in the performance of a range of recreational activities including playing golf. His sleep was now disturbed. Mrs Strahan gave evidence that the plaintiff is able to drive but 'not excessively'.
The medical evidence
Ali Khossousi
71 Dr Khossousi is the plaintiff's general medical practitioner. On 25 October 2011 he first saw the plaintiff in relation to his right knee injury. He had referred him to an orthopaedic surgeon for review and treatment.
72 Dr Khossousi gave evidence that the only treatment he was now providing the plaintiff was anti-inflammatory medication in the event of a flare-up. In his view because of the instability of the knee there was a need for surgical review to enable consideration to be given to a knee reconstruction or knee replacement.
73 Dr Khossousi's evidence was that the plaintiff was not fit to work as a pilot or police officer because of ongoing knee pain and swelling.
74 Dr Khossousi noted the history provided by the plaintiff as to the accident was that 'he was on the platform and was loading a truck when he slipped off the platform and fell on his right leg. The right knee was twisted and felt the pain straightaway'. Dr Khossousi gave evidence that in obtaining and recording of the history of the accident his main concern is usually the mechanism of injury.
Matthew Charles Scaddan
75 Mr Scaddan is an orthopaedic surgeon. On 16 November 2011 he first saw the plaintiff. He wrote a report on that date in which he noted that an MRI scan had shown an acute right anterior cruciate ligament (ACL) rupture. The history obtained from the plaintiff and recorded in the report was that the plaintiff 'was coming out of a truck three weeks ago when he twisted his knee, heard a pop and his knee immediately swelled'. Mr Scaddan was cross-examined at length as to the history. The relevant evidence is referred to later in these reasons.
76 On 1 December 2011 Mr Scaddan performed a reconstruction of the ACL. In his report dated 21 December 2011 he noted that the plaintiff had regained a full range of movement in the knee.
77 On 14 February 2012 Mr Scaddan reviewed the plaintiff. He noted the plaintiff had a full range of movement of his right knee and that it felt stable. At that stage Mr Scaddan allowed the plaintiff a trial of full duties 'which involved a lot of driving up to mine sites'. Mr Scaddan's view was that given it was 10 weeks post-surgery the plaintiff should be able to manage.
78 On 7 March 2012 Mr Scaddan reviewed the plaintiff. He noted that about a week before the plaintiff had twisted his knee in the garden. Mr Scaddan arranged an MRI scan which demonstrated that the ACL graft was intact. In his report of 13 March 2012 Mr Scaddan noted he had placed the plaintiff on light duties as from that date.
79 On 4 April 2012 Mr Scaddan reviewed the plaintiff and at that stage was not prepared to permit him to return to full duties.
80 On 17 May 2012 Mr Scaddan performed an arthroscopy of the plaintiff's right knee. There was a moderate medial meniscal tear and it was noted that 50% of the graft had ruptured. A partial medial meniscectomy was performed.
81 Mr Scaddan wrote a final report dated 8 October 2014. He opined that long-term the plaintiff was looking at a knee replacement. Mr Scaddan gave evidence that the older the patient was the more suited they were to a knee replacement. This was because a young patient would tend to wear out the replacement sooner. In his view in the event the plaintiff had a knee replacement in 'a couple of years' time' then he would hope to get 10 years out of it. A further replacement would be required 10 to 15 years thereafter.
82 Mr Scaddan's view was that following knee replacement there would be a minimum period off active work of three months and probably a total of six weeks of light duties. It was his view that there was normally a required period of hospitalisation of five days. Physiotherapy twice a day for two to three months was necessary. He said that for about a week following surgery some home assistance is required.
83 Mr Scaddan in his evidence identified the criteria for deciding whether a patient should have a knee replacement as being a combination of pain level, x-ray findings, limited walking to 500 m in a young person, waking up with pain at night and the demonstration of severe arthritis upon radiological examination or MRI. It was his opinion that as the plaintiff approaches a position where a knee replacement is required his capacity to work is diminished significantly and the plaintiff would not be able to carry out piloting duties.
84 Mr Scaddan's evidence was that following knee replacement the plaintiff could probably comfortably drive for three to four hours a day. However, the plaintiff would struggle to do more than four hours total driving in a day.
Toby Jacob Leys
85 Mr Leys is an orthopaedic surgeon and first saw the plaintiff on 28 June 2012, having taken over his management from Mr Scaddan.
86 Mr Leys wrote a report dated 28 February 2014 in which he noted the plaintiff had required a two-stage ACL revision. The first stage which involved a bone graft was performed on 30 August 2012. The second stage on 22 November 2012 involved reconstruction of the ligament itself.
87 Mr Leys gave evidence that following a knee replacement the plaintiff would require a recovery period of between five to seven days during which time there would be physiotherapy twice daily. Following discharge from hospital there would be additional physiotherapy for a period of six months. For the first month this would be once or twice per week and then becoming less frequent.
88 It was Mr Leys' opinion that there is usually some restriction in movement and function, even with a total knee replacement. It was his evidence that following knee replacement high impact activity and heavy load bearing activity was to be avoided. As to the longevity of the knee replacement, it was his view that about 90% of knee replacements are still functioning after 15 years. The period is shorter for younger patients or those engaged in regular physical activity.
89 Mr Leys gave evidence that a knee replacement for the plaintiff should be put off for as long as possible. It was his opinion that the plaintiff's physical limitations included squatting, bending, lifting and prolonged walking. Driving long distances can be problematic. This was because sitting in one position without any knee movement for a prolonged period of time can be painful. It was Mr Leys' evidence that following knee replacement the plaintiff should be able to drive for long distances.
90 It was Mr Leys' opinion that the plaintiff cannot return to his pre-injury occupation. Mr Leys said that the plaintiff will be compromised in any activity that required prolonged periods of time on his feet. The plaintiff was not precluded from entering the workplace but could not presently return to his previous occupation.
Anthony James Robinson
91 Mr Robinson is an orthopaedic surgeon who saw the plaintiff on 28 October 2014 for a medico-legal review. He wrote reports dated 28 October 2014 and 24 November 2014.
92 It was Mr Robinson's view that the plaintiff was prone to developing secondary osteoarthritis. It was his experience that 10 years post-knee reconstruction, patients were developing severe osteoarthritis. As a consequence there was a requirement for a total knee replacement.
93 Mr Robinson opined that following knee replacement a recovery period of six months was necessary as was regular physiotherapy, pain relief medication and home assistance for about 1 1/2 - 2 hours per day.
94 Mr Robinson opined that he would advise against a knee replacement at this stage. This was because there was only mild osteoarthritis. In his view following that knee replacement at least one review would be required given the plaintiff's age. It was Mr Robinson's opinion that 90% of knee replacements were successful. The cost of the procedure was between $25,000 and $30,000 and the replacement usually lasted for 17 years.
95 Mr Robinson opined that carrying out work as a road transport pilot or as a police officer would represent major problems for the plaintiff. Mr Robinson agreed that the plaintiff was able to engage in sedentary work. He said that subsequent to a reconstruction a patient should be able to cope with administrative or clerical work.
Defendant's evidence
Graham William Seymour
96 Graham William Seymour was for a period of 10 years up until May 2014 the general manager of the defendant. He gave evidence that it would be unlikely that he had organised the loading or piloting service for the trip. This was because at the time Mr Phil Wallace had responsibility for work done for the company known as Mt Gibson Mining. He agreed in his evidence that from time to time he did speak to Mr KD Strahan concerning the provision of piloting services.
97 It was Mr Seymour's evidence that on the occasions when he would have called Mr KD Strahan to arrange piloting services, the discussions would have touched on arranging a pilot or a number of pilots depending on the requirement for the load and that was all. He had no recollection of talking to Mr KD Strahan about the particular job or requesting that a pilot was to assist the drivers. He said that during his employment with the defendant it was never a requirement to direct pilots to specifically help with stooling up and loading.
98 It was Mr Seymour's evidence that the trailers did not come with a set of steps to allow access to the tray. This was because there was no necessity for the driver to get on to the back of the trailer. There was no need to have a set of steps. He agreed in his evidence that it was a speedy and simple process to drop the loading ramps at the rear of the trailer to allow access to the tray. Mr Seymour gave evidence that in relation to stairs or steps his view was that it would be unnecessary for the driver to get on to the trailer. He said that there was no need for a stairway on that sized trailer.
99 Mr Seymour said that it was not often that haulage companies get the pilots to assist with the stooling process and not unless requested by the driver. It was his evidence the driver would not expect to need assistance for the stooling process. This was because there were two drivers on the trip and there was unlikely to be any necessity for any further bodies to be around that vehicle at that time. It was his evidence that: 'And you would not bring them in unless there was absolute need'.
Charles Mulvey
100 Charles Mulvey is a professor of labour economics at the University of Western Australia. It was his evidence that the labour market has slowed considerably since around the beginning of 2014 because of the contraction of the mining industry. As a result there were a number of persons in the employment market with truck driving and loader operating experience. In his view because of the state of the economy it would be difficult to obtain employment. Unemployment was increasing and the number of vacancies decreasing.
101 Professor Mulvey opined that the plaintiff would have difficulty in obtaining clerical employment because of his age, experience level and because the availability of such employment in Pinjarra and Mandurah would not be good. Truck driving employment was essentially based in Perth.
David John Shipard
102 Mr Shipard is a truck driver and has been employed by the defendant in that capacity for seven and a half years. He had not met the plaintiff before the trip.
103 Mr Shipard gave evidence that he could not remember any particular instructions being received about the trip. As to the pilots, it was his evidence that he was told they would have to wait while the stooling was done.
104 Mr Shipard gave evidence that at the truck bay he had said to the pilots, 'I really don't want no-one to help us. We can do it ourselves'. He explained in his evidence that he had said this because he did not want 'anyone really around helping us'. Mr Shipard's evidence was that stooling was a common process in the transport industry. He said that it was a process which you could 'virtually do by yourself'.
105 Mr Shipard's evidence was that he had not said anything to the plaintiff about helping. He said he had not seen the plaintiff in any way helping with the lifting process.
106 Mr Shipard was asked about any discussion he had with the plaintiff after the stooling process was complete or about complete. His answer was that he did not know of any discussion.
107 It was Mr Shipard's evidence that he and Mr Stevens had completed the stooling process on the two dump trucks. When the process involving Mr Stevens' truck was complete he had not had any discussion with the plaintiff.
108 Mr Shipard's evidence was that the stool at the rear of the trailer did not have any equipment or mechanism to hold it down in its casing. It was his evidence that he was 'pretty sure' the plaintiff had a knee brace on before the trucks left. It was his evidence that there was no reason for the plaintiff to be on the back of any of the trailers.
109 Mr Shipard agreed that he was not asked anything about what had occurred until around 12 months before the hearing.
110 It was Mr Shipard's evidence that when the stooling process with respect to his truck was completed he had moved his truck and the process was repeated in relation to Mr Stevens' truck. It was his evidence that during the stooling process Mr Stevens had been with him for virtually all the time. He had not heard Mr Stevens ask the plaintiff if he was helping with the stooling and he had also not asked himself.
111 It was Mr Shipard's evidence that he had no idea where the plaintiff was when the stooling process was taking place. He denied that the plaintiff was helping with the stooling process on his truck. It was Mr Shipard's evidence that three people were not needed to position the ramps under the trailer.
112 Mr Shipard gave evidence that he told the plaintiff he did not want his help before they started 'lifting them off'. It was his evidence he would have been 'outside me truck' and near the load somewhere when that conversation occurred.
113 Mr Shipard was asked about the provision of assistance by the plaintiff at the truck bay. He denied the plaintiff had come up and said he was helping. Mr Shipard had spontaneously said that help was not required. This was because he did not want inexperienced people being around and getting hurt.
114 Mr Shipard gave evidence that moving stools and ramps into position for the purpose of stooling was not skilled work. That said, Mr Shipard added that 'you don't want someone sticking their finger where it doesn't belong'. He said the movement of ramps was work that could be done under direction. In his evidence he agreed that a person could anticipate what was to happen if a ramp was moved under a wheel.
115 It was Mr Shipard's evidence that it was unnecessary for a person who is unchaining the load and moving the stools to get up on to the trailer. This was because the loads are chained in such a manner that you can unchain them from the ground. Similarly, the stools could be pushed into position from the ground.
116 It was Mr Shipard's evidence that, in the process of stooling, he probably would have got onto the back of his trailer and/or Mr Stevens' trailer. It was his evidence that he had not used the stool on the back of Mr Stevens' trailer to get onto that trailer. This was because his boot would not fit and 'it's not that big enough gap'. Mr Shipard's evidence was that he had not seen Mr Stevens get onto the back of the trailer by using the stool. Mr Shipard, in his evidence, denied that he used the stool to get on and off the back of the trailer. There was insufficient room to use the stool as a foot hold. It was Mr Shipard's evidence that if he was at the back of the truck he would hold onto the loading ramps at the rear to climb up. At the truck bay the trailer ramps would have been open to 3.7 m.
117 It was Mr Shipard's evidence that persons not employed by the defendant or in some way associated with a load are not supposed to get 'nowhere near the truck or help us in any way'. He said that had been the position in the industry for years. It was Mr Shipard's evidence that only people who work for the defendant or work directly for the company where goods are being loaded are able to assist with loading. In this case, it was WesTrac personnel.
118 It was Mr Shipard's evidence that to get up on the trailer he would climb straight up the side. If he was climbing up at the back of the trailer he would be closest to a loading ramp so he could hold on to it and pull himself up.
119 Mr Shipard gave evidence that he had not received instructions or training from the defendant as to how to get onto the trailer. He gave evidence that there was a manual for a platform. He gave evidence that that was what the particular trailers are called. He agreed some trailers do come with a set of steps to enable a person to climb up. He agreed there were no stairs or steps on the trailers in question.
120 It was put to Mr Shipard that he had no recollection of all of what happened on that occasion (at the truck bay). His response was: 'I'd call you wrong as well'. In cross-examination it was put to Mr Shipard that he was concerned about his position 'in relation to this and that was why he gave evidence he did'. He denied this was the case. It was also put to him that he would have been in trouble with his employer for allowing someone to be on the truck and assisting with a task that he should have been doing. His response to the suggestion was: 'I'd assume so'.
Warren Frederick Stevens
121 Warren Frederick Stevens gave evidence that before being employed by the defendant he had worked for about eight years in heavy haulage for Kingston's Heavy Haulage. It was during that time he first met the plaintiff.
122 Mr Stevens gave evidence as to the stooling process. He said that at the truck bay he and Mr Shipard commenced by jacking the trailers up and putting ramps underneath the wheels. The back of the trailer was then lowered and then it was necessary to put 'timbers and stuff underneath them'. The dump truck was then raised higher and the process was repeated until the required height was attained. Mr Stevens gave evidence that the lifting process continues so that the wheels that hang over the sides are high enough to clear the handrails on the bridges.
123 Mr Stevens gave evidence that the stool at the rear of trailer T73 was never used for anything except widening and closing the trailer. It was not used during the stooling up process.
124 It was Mr Stevens' evidence that before leaving from Perth he did not receive any specific instructions about the trip from the defendant. It was on his evidence just a standard trip. Mr Stevens gave evidence that at the truck bay the pilots 'would have been milling around'. He was again asked about the plaintiff's location in the course of the stooling process. His response was that he could not honestly say.
125 Mr Stevens gave evidence that the stool was contained in its case at the rear of the trailer. There were no fastenings of any kind to hold it in place. He said nothing out of the ordinary had occurred in relation to the stool on that particular day and that it should have been right there where it was all the time.
126 Mr Stevens could not recall having any conversations with the plaintiff during or after the lifting process concerning the stool. He did not observe anything out of the ordinary in relation to the plaintiff's physical condition and the plaintiff had not made any complaint to him.
127 It was Mr Stevens' evidence that they would have 'just done the normal' on the night of the alleged incident, 'had a swim, a few beers, a feed and then gone to bed'. The next day the plaintiff had acted as one of the pilots for the trip into Derby. He had not noticed anything out of the ordinary concerning the plaintiff. It was his evidence that subsequent to having moved on from the truck bay he had not noticed that the plaintiff was having problems with his right leg.
128 Mr Stevens gave evidence that there are loading ramps at the rear of the trailer which are raised and lowered hydraulically. It was possible to use the loading ramps to access the rear of the trailer. Mr Stevens gave evidence that there are steps available to access the rear of a trailer but these were on 'newer ones'. Mr Stevens gave evidence that the means of obtaining access to the trailer was to step in to the wheel and up on to the deck.
129 Mr Stevens disagreed in his evidence that if you need to get up on to the trailer you can climb up on the rear middle of the trailer. He said this was not possible because the loading ramps are too far apart and there is nothing to grab hold of. He had rarely got onto the back of the trailer by climbing up from the rear.
130 Mr Stevens was asked about the necessity to get onto the deck/platform during stooling. He gave evidence that it was very rare with a dump truck because everything is done from the sides. It was his evidence that the supporting ramps can normally be put in place from the sides. The tie-down points for the load were on the side and it is possible to reach under the bumpers from each side.
131 It was Mr Stevens' evidence that pilots do not assist with stooling up loads. He accepted that on occasions pilots have assisted with various tasks. He agreed that pilots had helped with spare wheels. To his knowledge the plaintiff had not actively assisted with the stooling process. It was his evidence that on occasions someone may be asked to assist and not be a driver of a truck. When asked about assisting with stooling up loads by pilots he said this did not occur because 'they don't know what they're doing'.
132 It was Mr Stevens' evidence that he knew nothing about instructions the plaintiff had received to assist with the stooling process. He said he could recall most of what had occurred. He did not recall instructing the plaintiff to put 'stuff on the back of the truck'.
133 It was Mr Stevens' evidence that he did not recall seeing the stool tipping away from the back of the truck and the plaintiff falling to the ground. He did not recall kicking the stool back into an upright position. That did not happen so far as he could recall. He could not recall the stool being broken for some time. He said he did not do anything with the stool on that particular day.
134 By reference to photographs (exhibit 3/14 at pages 93 and 94) Mr Stevens was asked about the existence of a latch. It was his evidence that there was no latch attached to the stool and there was no spring that held it down. He gave evidence that a mark shown on a photograph of the stool and rear of the trailer was just a rust mark.
135 Mr Stevens gave evidence that to his knowledge the plaintiff had not actually assisted with the process by moving or helping out with moving the stools, with moving the ramps and so forth during the process.
136 It was Mr Stevens' evidence he did not know of all the conversations the plaintiff had with Mr Shipard.
137 It was Mr Stevens' evidence that he was unaware that if he allowed someone who was not an employee of the defendant to assist them he would be in trouble. Further, he had never heard anything about it being a breach of insurance.
Lindsay David Taylor
138 Mr Taylor has been the defendant's operations manager since July 2012.
139 Mr Taylor gave evidence that MD72 and MD73 were six-line platform trailers and were part of the defendant's fleet.
140 It was Mr Taylor's evidence that when he joined the defendant there were safety instructions and manuals in place. However there was no manual or instructions for the stooling process.
141 In cross-examination it was Mr Taylor's evidence that it was not common practice to have anybody to assist the drivers or to get on the trailers. He explained the reason for this as being because the persons were not trained in the activity.
The terms of the engagement of the defendant
142 The plaintiff seeks to rely upon the evidence of Mr KD Strahan to establish the term as to the provision of assistance. It is submitted that the term relating to acting upon instructions or directions is to be implied in order to give business efficacy to the agreement. What is said is that as the defendant's employees control loading and unloading of the dump trucks it follows as a matter of course that the plaintiff was required to act on the instructions or directions of those employees.
143 Mr KD Strahan was clearly very busy in his operation of K & G. He referred to receiving many telephone calls in the course of a day. He said in cross-examination that he did not have a specific recollection of the 'actual phone call, words or anything but it was Graham that rang me'. Mr KD Strahan's evidence was very much influenced by the reconstruction he had done in reliance upon K & G's invoice to the defendant and the invoice received by K & G from the plaintiff.
144 I accept the defendant's submission that the reference to a rate of $250 per day for two days of stooling and unstooling and power line lifts recorded in the plaintiff's invoice is consistent with the evidence of the plaintiff that he charges a standby rate of $250 per day in any event to sit around whilst he is not driving.
145 K & G's invoice records an amount of $1,200 for stooling and unstooling. The explanations provided by the plaintiff and Mr KD Strahan were difficult to reconcile. Mr KD Strahan's evidence was that the rate was $600 per day but subsequently said it would have been $250 per day but he would have charged $200 per day.
146 It is the case that the plaintiff's evidence was that when he spoke to Mr KD Strahan he was told the defendant needed a pilot to assist. Whilst the plaintiff referred to the fact he was to receive $250 per day for the stooling and unstooling, Mr KD Strahan, in his evidence, did not say that he had discussed any figures either with Mr Seymour or with the plaintiff.
147 I am not satisfied that the words 'stooling' and 'unstooling' as they appear on K & G's invoice are supportive of the existence of the alleged terms. As submitted by the defendant it equally supports that a standby rate was being charged during the stooling and unstooling.
148 The plaintiff submitted that the defendant failed, without explanation, to call Mr Wallace who Mr Seymour said was responsible for the Mt Gibson work and therefore the trip. It is said two inferences arise. First, that his evidence is unlikely to have assisted the defendant and, secondly, the court is able to look more favourably upon concluding that Mr KD Strahan's version of events is correct.
149 I do not accept that the inferences contended for by the plaintiff can be drawn. The plaintiff's case was that the agreement entered into was with Mr Seymour on behalf of the defendant. He was called by the defendant. Whilst Mr Seymour said that Mr Wallace was likely to be the person who dealt with the matter, that did not impose any obligation upon the defendant to call him. I do not accept the plaintiff's submission.
150 On balance I consider it likely the person to whom Mr KD Strahan spoke was Mr Seymour. However, I am not satisfied that Mr KD Strahan's evidence as to the telephone conversation with Mr Seymour and its content is reliable. The job sheet, which was reasonably contemporaneous, contains no reference to stooling. There was a reference in Mr KD Strahan's evidence to having difficulty in recording information. I do not accept that it would have been difficult or onerous to add a reference to stooling. Stooling was not a usual process undertaken by pilots. In cross-examination Mr KD Strahan conceded that he did not think that the defendant had previously made any request for anybody to assist with the stooling. In the circumstances it is probable that if there had been a request for assistance it would have been recorded. I am not prepared in the circumstances to act upon or rely upon Mr KD Strahan's evidence that there was any reference to assistance with stooling.
151 Mr KD Strahan's evidence was very much as to, in effect, what usually occurred. When asked what instructions, if any, the defendant had given when he had done jobs for them in the past concerning getting on or not getting on their trucks he said he had never been instructed one way or the other. He said, in relation to pilots he organised, that he did not ever have cause to give them any instructions about getting on or off any of the trucks that they were to escort. It was his evidence the defendant did not ever give any instructions in relation to his pilots and the trucks. I accept in the circumstances that prior conduct was not relevant to the particular conversation there having been no prior instruction concerning stooling.
152 I accept Mr Seymour's evidence that during his employment with the defendant it was never a requirement to specifically help with stooling up and loading. I am satisfied his evidence is reliable. He made suitable concessions and was impartial. I am satisfied he was honestly trying to remember what had occurred and have no hesitation in accepting him as a witness of the truth. When he did not remember he made it very clear. For example, when asked if he had checked an invoice in October 2011 he said how would he recall that. Given my finding that in the conversation between Mr KD Strahan and Mr Seymour there was no discussion about stooling and, having regard to the view to which I later refer, that the plaintiff was not a reliable witness and accurate historian, I do not accept his evidence that his father made reference to the defendant requiring assistance in stooling from one of the pilots.
153 I am not satisfied in all of the circumstances that it was a term of the agreement that a pilot, was required to assist the defendant's employees, servants and agents to, amongst other things, lift the load on the vehicle and to assist with stooling.
Conclusions
154 The defendant submitted that the plaintiff's evidence should be rejected and that the evidence of the defendant's witnesses should be accepted and preferred. The defendant's counsel identified a number of matters he said constituted inconsistencies. One of the responses to the submission was that the defendant was 'nit-picking' and that any discrepancies or inconsistencies were inconsequential.
155 The defendant delivered interrogatories dated 14 April 2014. Interrogatory 1.3 requested the plaintiff to specify who directed him to 'pilot the load'. The plaintiff's answer sworn 12 June 2014 was 'Graham Seymour, the manager of Peter Tibbett, Western Australia'. Interrogatory 1.4 asked the plaintiff to specify what, if any, instructions he was given by the person who directed him to pilot the load. The plaintiff's answer was that he was instructed 'to give the truck driver a hand to stool up the load and then de-stool the load once they had gone over the bridge and to charge two days labour for doing this'.
156 Answer 1.3 clearly identifies that the plaintiff received instructions from Mr Seymour. The plaintiff's evidence was that he had only communicated with Mr KD Strahan, Mr Stevens and Mr Shipard. The plaintiff agreed that he knew because of his previous experience as a police officer the importance of accuracy in court proceedings. When asked about his answer the plaintiff's response was it was Mr Seymour who 'ordered' the pilots. The plaintiff is clearly an intelligent person and there was no evidence that I am prepared to accept that he did not understand or misunderstood the interrogatory. The plaintiff's answer 1.3 was inconsistent with his evidence. The inaccurate answer in the circumstances is a demonstration of the unreliability of the plaintiff's evidence and affects his credibility.
157 The plaintiff gave evidence about work he had done after injuring his knee. In examination-in-chief he said he had not done any (save for the return trip from Derby). In cross-examination he said he was almost sure that he had not worked since the accident. He was shown his invoice, number 459, dated 24 February 2012. He said the invoice disclosed a trip of 516 km and an overnight stay. He agreed it was for work he had done after suffering injury. He explained he thought the invoice related to work done before his injury. The extent of incapacity is an important issue in this trial. This work was four months post-accident and the plaintiff's explanation causes me to have significant reservations as to his reliability as an accurate historian.
158 Further, the plaintiff was asked about his condition following his surgery in May 2012. He said in evidence-in-chief he had not worked up until that stage. Later in cross-examination in response to a question as to work done since the injury he said he had done nothing.
159 The plaintiff was asked about any other piloting work he had done since injuring his knee. It was his evidence that he thought he may have
helped out with a quick one from the back of Alcoa to the front of Alcoa, which was 15 minutes, but it's only because I live in Pinjarra and he leaves his vehicle at my place and I drive it because that's – I haven't got a vehicle.
160 When asked in cross-examination about any further work he had done since the time of the incident in October 2011, he answered 'Nothing'. The next question and answer were:
Absolutely no work? – No, sorry. For two hours – two to three hours a month, I help my father out with some computer work and that is it.
161 The plaintiff's evidence was that he received no payment from Mr KD Strahan for the computer work.
162 The second trip (albeit of short duration) was related to a return to work programme. There is also a failure to disclose what was relevant assistance being provided to Mr KD Strahan (albeit, again only of short duration). During cross-examination he was asked why he had said he had not done any work. His response was 'Because I didn't recall'. As I say, the plaintiff must have been aware of the importance of proper disclosure of post-accident employment.
163 The description of how the plaintiff came to be injured which he included in his claim for worker's compensation dated 25 October 2011 differed from the account given in his evidence. Relevantly, in the claim form there was no mention of having slipped off the stool when he put his foot down onto it. The account provided in the claim form is that he had fallen from a platform. When asked about the fact there was no mention of a stool, the plaintiff said that the stool was part of the platform which he had stated he had fallen from. The plaintiff's submission is that because he had identified Mr Stevens as a witness in the claim form this was supportive of his position. There was no issue as to who was at the truck bay at the time when the plaintiff says he was injured. The nomination of Mr Stevens as a witness takes the matter no further. The claim also refers to the plaintiff having attended the Derby hospital and that there was no doctor available. It is submitted this would be an odd thing to include in a claim form if it did not happen. It may well be the case the plaintiff did attend the Derby Hospital. However, the burden remains upon the plaintiff to prove how he suffered an injury.
164 The plaintiff's case relies upon a number of different allegations of negligence. However in his evidence the plaintiff said that he had seen a latch after he fell. The plaintiff's evidence as to the latch was that there was a flat metal bar across the top of the stool which had a spring attached to it. The spring was perpendicular to the latch and had a hook at each end. The plaintiff gave evidence that he did not know whether he stood on the latch as he got on and off the trailer. The plaintiff gave evidence he had spoken to Mr Stevens at the time. The amended statement of claim pleads that the stool was loose because the latch was faulty. I do not accept that there was a latch on the stool. The photographs produced of the stools to the rear of each of the trailers do not show a latch. The evidence of Mr Stevens was there was no latch or any latch attachment point. I accept and prefer Mr Stevens' evidence in relation to that of the plaintiff supported, as it is, by the photographs.
165 In cross-examination the plaintiff gave evidence that in relation to each trailer he had climbed up and down somewhere between five and ten times. He said he had got on and off each trailer the same way. The photographs establish that it would have been difficult to use the stool at the rear of trailer T72 to get on and off the trailer because of a piece of protruding metal which was at least a partial physical obstruction. Again, this is shown in the photographs produced in evidence. Similarly, because trailer T73 was expanded during the stooling process to 3.7 m it would have been difficult to use the stool to get on and off the back of the trailer because there would be no hand holds. In addition, if the plaintiff had climbed up and down each trailer five to ten times, it would be unlikely that neither Mr Stevens nor Mr Shipard would not have noticed him doing so.
166 The plaintiff was cross-examined in relation to the alleged inconsistency between his evidence as to how he was injured and the account given to medical and health professionals. It is accepted that a medical practitioner would be more concerned with the mechanism of injury rather that the precise way in which it occurred. As the plaintiff said in evidence in relation to one practitioner's account, this was simply the doctors' 'take on it'. The plaintiff denied in his evidence that he had said to Mr Scaddan that he was coming out of a truck when he was injured. Ultimately Mr Scaddan gave evidence that he may have mixed up patients notwithstanding evidence that his notes were reasonably contemporaneous. In all the circumstances I do not accept that any identified inconsistency in relation to accounts given to medical practitioners and health professionals is of any significance.
167 The defendant submitted that the way in which the plaintiff's claim had been expressed prior to trial by the plaintiff's solicitors was inconsistent with the plaintiff's case at trial. As with the reporting by medical practitioners, the plaintiff's position was that the legal practitioners had essentially misunderstood. Thus in a letter of demand dated 3 December 2012 from the plaintiff's then solicitors to the defendant there was no mention of the existence of an agreement to assist with the stooling. Further, the original statement of claim dated 4 November 2013 did not contain any allegation that a term of the engagement of K & G was that assistance was to be provided. I accept there is a potential for misunderstanding as to the instructions. Accordingly, I do not accept that the inconsistencies are of any significance.
168 As is apparent from the above, the plaintiff was cross-examined at length in relation to inconsistencies between his evidence and other evidence. It is clear some of the identified matters alone would be insufficient to affect the assessment of the plaintiff's evidence, for example, the evidence as to the history noted by medical practitioners. Other identified matters are more significant given their degree of materiality, for example, the answer to the interrogatory as to who directed the plaintiff in his duties; further evidence of the extent to which the plaintiff had worked after being injured. The answers to interrogatories and the failure to disclose work done since the accident are factors which cause significant doubt to be cast upon the plaintiff's evidence. Further, I find that there was no latch to secure the stool as the plaintiff asserts. In the end I am satisfied that the combination of the inconsistencies coupled with their degree of materiality does adversely affect the plaintiff's credit and the reliability of his evidence. I am not satisfied that the plaintiff was in all respects a credible and reliable witness or an accurate historian. I accept and prefer the evidence of the defendant's witnesses as to what occurred at the truck bay. Further, I am not prepared to accept the evidence of the plaintiff concerning how he says he came to injure his right knee and the circumstances leading up to the injury.
169 Mr Shipard and Mr Stevens had been employed by the defendant for a number of years. The accounts given by each were consistent and plausible. Each was a competent and experienced truck driver. They were each experienced in the stooling process and were aware of the tasks required to complete the process. The stooling process could be undertaken without assistance. The process of stooling involved heavy machinery. There was concern that an inexperienced person might be injured in engaging in the stooling process. It was unusual as a matter of practice for pilots to assist with stooling. I do not accept that the plaintiff's assistance would have been sought or required. It is entirely plausible that Mr Shipard and Mr Stevens would not require the plaintiff's assistance in the stooling process at the truck bay.
170 The plaintiff's submission was that Mr Shipard was only asked to provide a statement 12 months prior to the trial some three plus years from the event and many trips later. The principal submission is that it would be odd that he remembered warning the drivers off. The plaintiff submits that the 'recollection' provides support for the fact that there was a conversation about the plaintiff assisting. Further, he said that he was pretty sure the plaintiff had a knee brace on and yet no other witness had said so. In summary, the plaintiff submits that the late recall and discrepancies in Mr Shipard's evidence significantly increase the probability that the plaintiff's version of events is correct.
171 The plaintiff's submission is that Mr Stevens did not receive any specific instructions about the trip and that this was, to some extent, at odds with Mr Shipard's version of events. It was submitted that his evidence that as he could not say where the plaintiff was as 'it gets hectic during stooling', this confirmed that the plaintiff may well have been close to or even on the trailer. It was submitted that as Mr Stevens said he could not recall any discussions with the plaintiff in relation to the stool or the stooling process the plaintiff's version of events was uncontradicted.
172 Mr Stevens had met the plaintiff in the course of prior employment. However, there was nothing suggested or raised concerning any prior animosity, dispute or disagreement between them which might in some way have affected the reliability of the evidence of Mr Stevens. Mr KD Strahan gave evidence that he had worked with Mr Stevens and had known Mr Seymour since 1970 and had never had a problem with him.
173 Mr Stevens was a truthful and reliable witness. When he was unable to remember something he gave evidence to that effect, for example, when asked who was in the convoy he identified the plaintiff but said he could not remember who was the traffic warden or the other escort. He was asked about his recollection of the trip. He said it was a big vague but he could recall 'a fair bit'. He was asked when he was asked to recount what had happened. He said in relation to a suggestion of '12 months ago' that it was 'probably – at least'.
174 The evidence of Mr Stevens was given without embellishment or exaggeration. Beyond the suggestion made to him in cross-examination, which was rejected by him, that he was aware he might get into trouble if someone had been injured during the stooling process, there was nothing advanced as to why he might misrepresent the position. I am aware he has done many loads since the trip and that is a factor I have considered in the assessment of his evidence and the accuracy of his recollection of the particular events. I have also considered the matter identified by the plaintiff's counsel that Mr Stevens was only asked to recall events 12 months before trial. There were no significant inconsistencies in his evidence. His account of his work as a driver was clear and concise. I do not accept the plaintiff's submissions concerning the evidence of Mr Stevens in relation to 'recall'. Similar submissions were made as to 'recall' in relation to other witnesses. A question asked of a witness as to whether he recalls something to which the answer is 'no' does not without more establish that something did or did not occur. A lack of recollection of an event does not establish it did or did not occur. I accept the evidence of Mr Stevens and prefer it to that of the plaintiff who has been found to not be an accurate or reliable witness.
175 The assessment made of the evidence of Mr Shipard was not dissimilar to that made of Mr Stevens' evidence. He did not know the plaintiff before the trip. He specifically identified a risk of injury as a factor for why assistance from persons inexperienced in stooling would not be sought. This is understandable given the nature of the activity being undertaken and the size of the load being dealt with. Each of Mr Stevens and Mr Shipard gave evidence that an inexperienced person could be directed as to what was required. However that evidence needs to be considered against the evidence that the stooling process could be dealt with by the drivers alone. Mr Shipard had not been asked to make a statement until 12 months before trial. I take this into account in the assessment of his evidence. Mr Shipard was impartial. He made concessions as appropriate and gave evidence which seemingly might be regarded as against the defendant's position. For example, Mr Shipard gave evidence that he had not received instructions or training from the defendant as to how to get onto the trailer. He agreed some trailers do come with a set of steps to enable a person to climb up. He agreed there were no stairs or steps on the trailers in question. He accepted that an inexperienced person could be given suitable directions and instructions in relation to stooling and thus provide assistance.
176 Mr Shipard was consistent throughout. I found him to be an honest witness. His evidence was accurate and reliable and I prefer it to that of the plaintiff. I do not accept that there was any significant inconsistency between the evidence of Mr Stevens and Mr Strahan.
177 In summary I make the following findings:
1. As a matter of practice pilots do not assist with stooling.
2. Whilst there had been a relationship between the defendant and K & G involving the provision of pilots by K & G, its pilots had never been requested or required to assist the drivers with the stooling process.
3. There was no fastening, latch, spring or other retaining mechanism attached to the stool to the rear of either trailer T72 or T73.
4. Mr Shipard had not met the plaintiff before the trip. Mr Stevens knew the plaintiff and Mr KD Strahan. Mr KD Strahan and Mr Seymour had known each other for a number of years. There was no suggestion of ill-feeling or animosity between the parties or any of the named individuals before the trip.
5. At the truck bay Mr Shipard had told the pilots that their help was not wanted. This was because stooling was a process which could be done by the truck drivers alone. It was a common process within the industry.
6. The stooling and unstooling process in relation to each trailer was carried out by Mr Stevens and Mr Shipard without any assistance from the plaintiff.
7. The lowering of the loading ramps to the rear of the trailers, whilst being a method of accessing the platform, was not adopted within the industry or the method adopted by the drivers. Because drivers did not generally need to get onto the back of a trailer there was no need for a set of steps to be provided as might be the case if the driver was making frequent deliveries.
8. On 20 October 2011 at the truck bay neither Mr Shipard nor Mr Stevens requested, instructed or directed the plaintiff to assist with the stooling process. The stooling of Mr Shipard's load occurred first followed by Mr Stevens' load.
9. The stools to the rear of trailer T72 and trailer T73 were not used by Mr Stevens or Mr Shipard to get on and off the back of either trailer at the truck bay. The stool to trailer T73 was only narrow and the stool to trailer T72 was partly restricted. The stools to the rear of the trailers were used for widening and closing the trailer. They were not used during the stooling process.
10. Neither Mr Stevens nor Mr Shipard saw the plaintiff slip and fall from trailer T73. Mr Shipard did not see the plaintiff helping in the stooling process. I am not satisfied there was a conversation between the plaintiff and Mr Stevens as the plaintiff asserts concerning the stool or the injury as the plaintiff asserts.
11. During the stooling process persons not employed by the defendant or in some way associated with the load (such as WesTrac in this case) were not supposed to provide assistance.
178 In all the circumstances I did not find the plaintiff's evidence to be accurate and reliable. I do not accept the plaintiff's evidence where it conflicts with the evidence of Mr Stevens and Mr Shipard.
179 The plaintiff has failed to discharge the burden of proof upon him to establish how he came to be injured. There are no witnesses to the incident in which the plaintiff alleges he was injured. I am not satisfied the injury was sustained in the way alleged by the plaintiff. I am not satisfied on the balance of probabilities that the plaintiff fell as alleged. I am not satisfied as to how the plaintiff injured his knee. The burden is on the plaintiff to prove how he came to suffer his injury and identify how it is said to have occurred as a result of the defendant's breach of duty. I have already made findings in relation to the evidence of Mr KD Strahan and Mr Seymour. I am not satisfied that there was a term of the engagement of K & G by the defendant that a pilot was to assist in the stooling process.
180 Whether a duty of care existed and, if so, what was the scope and content of that duty is determined by considering reasonable foreseeability and the 'salient features' of the relationship between the plaintiff and the defendant: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [20] (French CJ & Gummow J). It is necessary to consider all of the features of the relationship between the parties.
181 The existence of a duty needs to be determined on the basis of the facts found and all the circumstances.
182 I am not satisfied that the plaintiff has established the existence of either a contractual obligation requiring the plaintiff to assist with the stooling or that there had been requests, instructions or directions given or made at the truck bay by Mr Stevens or Mr Shipard for the plaintiff to assist. The plaintiff was not instructed, requested, directed or permitted to be on the trailers. Mr Shipard told him he was not required. His engagement was as a road pilot which, in the usual course, and in this case, did not require him to get on and off the trailers.
183 In the circumstances I am not satisfied that there was a duty of care imposed upon the defendant as alleged. The facts do not support the imposition of a duty of care as alleged.
184 The finding that the defendant did not owe the alleged duty of care to the plaintiff is sufficient to deal with the plaintiff's common law negligence action. The duty imposed upon an occupier by s 5 of the OLA is take 'such care as in all the circumstances of the case is reasonable to see that [the entrant] will not suffer injury or damage by reason of any such danger'. The dangers are those 'which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible'.
185 There was no danger constituted by the truck and trailer.
186 Section 19(1) of the OS&H Act reads:
An employer shall, so far as is practicable, provide and maintain a working environment in which his employees are not exposed to hazards and in particular but without limiting the generality of the foregoing, an employer shall –
(a) provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, his employees are not exposed to hazards;
(b) provide such information, instruction, and training to, and supervision of, his employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards.
187 The term 'employer' is defined in s 19(4) of the OS&H Act to include a principal who employs a contractor to carry out work and such a person is deemed to be an employee of the principal. The pleading of the statutory breaches adds nothing to the claim in negligence. These claims must also be dismissed.
188 In the circumstances, and given the findings made, it is inappropriate to consider questions of breach, causation and contributory negligence.
189 I am mindful that in the event of a successful appeal against the findings in this case the matter may need to be remitted back to this court for assessment of damages (see Kerr v Minister for Health [2009] WASCA 32 [3]). However because such an assessment would necessarily depend on acceptance of the plaintiff's evidence, it is inappropriate to proceed further.
190 The plaintiff's claim is dismissed.
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