Sutton v Container Handlers Pty Ltd - [2000] WADC 254

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SUTTON -v- CONTAINER HANDLERS PTY LTD [2000] WADC 254

CORAM: NISBET DCJ

HEARD: 21 & 22 AUGUST 2000

DELIVERED : 17 OCTOBER 2000

FILE NO/S: CIV 4096 of 1998

BETWEEN: ASHLEY ROBERT SUTTON
Plaintiff
AND
CONTAINER HANDLERS PTY LTD
Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
First Third Party
UNION DES ASSURANCES DE PARIS
Second Third Party

Catchwords:

Negligence - Volunteer injured assisting driver in roadside repairs - Contributory negligence - Insurance - Motor vehicles - Third party insurance - Bodily injury directly caused by, or by the driving of, a motor vehicle - Meaning of "directly caused by" - Whether direct or proximate cause - Motor vehicle (Third Party Insurance) Act 1943 (WA) - Insurance - Public liability - Construction - Whether further indemnity available to defendant.

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Plaintiff's claim allowed. No contributory negligence. Defendant's claims against Third Parties fail.

Representation:

Counsel:

Plaintiff:     Mr B G Bradley
Defendant:     Mr A J Power
First Third Party           :     Mr G P Bourhill
Second Third Party       :     Mr R J McCormack

Solicitors:

Plaintiff:     Pynt McKay
Defendant:     Minter Ellison
First Third Party           :     Phillips Fox
Second Third Party       :     Srdarov Richards Burton

Case(s) referred to in judgment(s):

Chapman v Hearse [1961] SASR 51
Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500
Electric Power Transmission Pty Ltd v Orgaz, FCt SCt of WA; unreported; Library No 7914; 3 November 1989
Jaensch v Coffey (1984) 155 CLR 549
Jones v Dunkel (1959) 101 CLR 298
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147
San Sebastion Pty Ltd v The Minister Administering Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340
SGIC v Sinfein Pty Ltd (1996) 15 WAR 434
Transport Accident Commission v Jewell [1995] 1 VR 300
Transport Accident Commission v Treloar [1992] 1 VR 441

Case(s) also cited:

Australian Casualty Co Ltd v Federico (1986) 160 CLR 513
City of Rockingham v Curley & Anor [2000] WASCA 202
Darlington Future Ltd v Delco Pty Ltd (1986) 161 CLR 500
GIO (NSW) v RJ Green Lloyd Pty Ltd (1996) 114 CLR 437
Health v Tea Tree Gully City Council (1996) 66 SASR 548
Ingrilli v De Sales, unreported; FCt SCt WA; Library No 980596; 14 October 1998
Legal and General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390
Leigh v Quito Pty Ltd T/As Benara Nurseries & Anor (2000) Aust Torts Reports 81-561
Motor Accident Commission v ANI Corp Ltd & Anor 26 MVR 57
Nolan v Hamersley Iron Pty Ltd (1999) WADC 18
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Purkess v Crittenden (1965) 114 CLR 164
Rooney v Australian Turf Industries Pty Ltd, unreported; DCt WA; Library No D970359; 14 November 1997
SGIC (SA) v Mayne Nickless Ltd (1998) 27 MRV 527
SGIC (SA) v Stephen Bros Pty Ltd (1984) 154 CLR 552
State Government Insurance Commission v Wagner & Anor 62 SASR 175
Wayne Tank & Pump Co v Employers Liability Ltd [1974] 1 QB 57
Workcover Corp v Reiter (1997) 26 MVR 17

NISBET DCJ: On 12 March 1998 the plaintiff was a crane driver employed by Brambles Australia Ltd at Port Hedland. Brambles had secured a contract for one of its cranes to undertake some work at a place in the interior of the north-west of Western Australia known as Camp Tracey which is located approximately 90 kilometres from Telfer. At Camp Tracey the plaintiff was to load three or four uranium containers on to a truck and when that task was complete he had further instructions to take his crane to the Nifty Strikes Copper Mine where he was to assist in a shutdown. This journey into the remote outback of north-west Western Australia could not be undertaken by the crane by itself and the plaintiff's employer contracted for the crane to be transported to Camp Tracey and then to Nifty by a firm known as Coleman's Transport. The plaintiff was to accompany the crane. Coleman's provided a Scania prime-mover to which was attached a Lusty Alison low loader. The driver of the prime-mover and low loader was Jason Reiball. The plaintiff met him for the first time on the morning of 12 March 1998 and assisted him in loading his crane on to the low loader for the journey. Leaving Port Hedland the plaintiff and Reiball travelled along the Marble Bar road then the Woodie Woodie Road and the Telfer Road to Telfer where they then branched off to Camp Tracey.
During the course of this journey a mechanical difficulty arose which necessitated the crane being taken off the back of the low loader and proceeding under its own power to Camp Tracey. The road was very bad and on occasions the crane had to tow the prime-mover and low loader. Eventually the plaintiff, Reiball and their machines arrived at Camp Tracey late on the night of 12 March 1998.
The next morning, 13 March 1998, the plaintiff completed his work loading the uranium containers and set off for Nifty retracing in part the journey of the previous day on the road back to Telfer, the crane again towing the prime-mover and low loader. At Telfer the crane was reloaded on to the low loader and the journey to Nifty recommenced, the party arriving there at about 5 pm where they unloaded the crane. The next day, 14 March 1998, the plaintiff operated his crane but the work ran out sooner than anticipated and the plaintiff received instructions to leave the crane at Nifty and return with Reiball to Port Hedland, Reiball in the mean time having arranged a back load. The plaintiff then accompanied Reiball to Port Hedland setting off from Nifty on the morning of 15 March 1998. Around midday Reiball brought his prime-mover and low loader to a halt in order to carry out an inspection of the vehicles. This was his usual practice and it had been undertaken previously when the first mechanical fault that I described was observed. It was an exceptionally hot day as can be imagined at that time of the year. During the course of this inspection the plaintiff observed smoke and fumes coming off one of the rear wheel hubs of the low loader. He said there was a lot of grease everywhere and the wheels "were sort of out of shape, so it looked pretty serious. I told Jason." The plaintiff identified the wheel in question as the third from the rear of the low loader.
After Reiball inspected the wheels he decided that both would have to come off and that they would have to chain the axle up before setting off again. Those with a mechanical bent will know immediately what was entailed in this operation. If the wheels were removed from the axle there would be no support for the axle which would fall and drag and accordingly it had to be lifted up and secured in some way. The wheels on the other end of the axle would of course continue to operate.
The plaintiff deposed that Reiball told him to get some chains in order to chain up the axle after the wheels had been taken off or alternatively the jack, he could not quite remember, but he did proceed to take some equipment from a tool box at the back of the prime-mover. He found this too hot to handle because of the temperature and he had to put on some gloves so that he could handle the equipment. He assisted Reiball to remove both wheels after which Reiball put a chain through the top of the deck of the low loader to which were attached two hooks on the ends of the chain so that the chain formed a loop over the top of the low loader with both hook ends dangling towards the ground, the idea being that when the axle was jacked up the hooks would connect with each other to form a cradle to hold the axle. During this procedure it became evident that the chain was not long enough. The plaintiff and Reiball were having a great deal of difficulty getting the hooks to meet. Reiball was working somehow or other inside the framework of the low loader so it might be imagined that he was in an area between where the two sets of wheels where either end of the axle would be located. The plaintiff was located in the wheel hub area of the low loader in the space where the wheels were. Whilst the plaintiff could not see what was happening Reiball was jacking up the axle while the plaintiff was trying to connect the hooks of the chain ends together. This manoeuvre is best understood by looking at the photograph exhibit P3. This depicts the hub attached to an axle going through the chassis of the low loader. Reiball was on the other side of the chassis which obviously obscured the plaintiff's view of him and what he was doing. One next needs then to imagine the chain ends hanging from the top of the photograph coming down either side of the axle so that they would go under the axle and hook up and form the cradle I have already described. The plaintiff was squatting in the area depicted between the axle hub and the wheel hub arch to the left of the axle hub numbered 4 on exhibit P3. The plaintiff was in the area that is generally depicted by the numbers 1, 2, 3 and 5 on exhibit P3.
As might well be imagined this was a difficult task in very difficult conditions. It was a blistering hot day in the outback of the north-west of Western Australia on a rough and sandy road in inhospitable terrain with no prospect of help arriving. The plaintiff and Reiball were obliged by their circumstances to do the best they could. As can be readily imagined when one looks at exhibit P3 the plaintiff was in a very precarious position. The plaintiff was unable to get the ends of the chain to connect and advised Reiball who told the plaintiff "he would have another go at jacking it to try and get it up higher". The plaintiff thought he could hear Reiball jacking up the axle when he said:
"…Just a big bang I suppose and a lot of dust. I yelled out to him that my hand's trapped."
At my request the plaintiff marked exhibit P3 with a cross where he believes his hand was when it was trapped. Looking at the cross it is easy to see now how this accident happened. The plaintiff crouched low in the wheel hub arch in a difficult position steadying himself with his left hand against part of the low loader chassis marked with the cross has not realised that the trail arm assembly of the axle which protrudes through the chassis was near his hand and furthermore would not have realised that it was connected to the axle so that if the axle dropped, so did the trail arm assembly. In a most unfortunate accident this is what occurred. The axle slipped off the jack and the trail arm assembly connected to the axle dropped on to the chassis trapping the plaintiff's hand and causing what the plaintiff's counsel accurately described as "a brutal injury" to the plaintiff's left hand.
The plaintiff went on to testify that as he was the person asked by Reiball to fetch some of the equipment necessary for jacking up the axle of the low loader he was able to see what equipment had been supplied for emergency roadside repairs. He did not see any blocks of timber, planks, wedges or other apparatus such as may have been used by Reiball to steady the jack that is to say to ensure that it was on a stable surface, unlikely to slip, before the jacking operation commenced. Additionally he said there were no longer chains than that which was being used in an attempt to lift up the axle nor was there any other jack that he could see apart from the very simple bottle or bell shaped jack that Reiball used. There was no heavier jack of the type that one frequently sees in mechanical workshops such as are depicted in exhibit P5 and described as trolley jacks (those shown on p 2) – the jack being used was similar to that being depicted on p 1 of exhibit P5.
It is out of these circumstances that the plaintiff claims damages for negligence against the defendant as a principal and against the defendant as being vicariously liable for the negligence of Reiball, the particulars of which are pleaded a para 11 and para 10 respectively of the statement of claim. It seems to me that it was entirely foreseeable that an injury of the type sustained by the plaintiff could be sustained by persons attempting to effect emergency roadside repairs to a vehicle such as this low loader. A prudent employer in the position of the defendant should have properly equipped its vehicles for the carrying out of emergency roadside repairs to the wheels and axles of its low loader. The occasional necessity to change tyres and wheels is a well enough known phenomena to anyone who has ever driven a vehicle let alone to a company engaged in heavy haulage transport and it should have provided its servant Reiball with sufficient equipment to enable the task to be carried out in safety. Sufficient equipment in my opinion would involve first and foremost a trolley jack of sufficient lifting capacity that it could lift an axle of the prime-mover and the low loader. Additionally, braces or supports should have been provided so that the axle was at all times supported. Next planks or blocks should have been provided so that the trolley jack was on a secure footing. Further, chains of sufficient length should have been provided.
Additionally it should be recorded that at the time when the crane was put on the low loader the plaintiff observed difficulty in the hydraulic power unit of the low loader. The hydraulic power unit ordinarily enables the tray of the low loader to be lowered and raised and if it was in proper working order, the method of chaining up this axle employed by Reiball would undoubtedly been different. The tray could have been lowered towards the axle and from its lowered position chains or other securing linkages employed to attach the axle to the tray and then the hydraulic power unit used to lift the tray and axle together but it would appear, and a fair inference available from the evidence is that this was not in good working order and condition. As to the negligence of Reiball, it should first be noted that he was not called to give evidence by the defendant and there was no evidence offered to the Court that he was unavailable to give evidence. Accordingly, it appears to me that I may more readily draw inferences against Reiball or alternatively can more readily infer that his evidence would not have assisted the defendant: Jones v Dunkel (1959) 101 CLR 298. In my opinion the evidence of the plaintiff makes manifest Reiball's negligence. As the person in charge of the operation he should first of all have instructed the plaintiff to get out of the position that he was in and only to attempt to connect the chains if it was safe for him to do so. Next he should not have used the jack in question without first insuring that it was able to be used on a firm stable footing and that it could get sufficient purchase on an appropriate part of the axle that would prevent it from slipping. He should not have commenced to jack the axle without insuring firstly that the plaintiff was in the clear. Again, I think it reasonable to infer that had Reiball inspected his emergency repair equipment with the prime-mover and low loader before setting off on the journey he would have ascertained that he did not have sufficient equipment to effect any emergency roadside repairs with wheels and tyres and the like and he should have requisitioned the appropriate materials from his employer.
Up to this point I have been using the terms "negligence" as an adjective to describe the acts and omissions of the defendant and Reiball, not in the sense of it being a perfected cause of action for which there needs first be found a duty of care for there is a question here of whether or not the defendant owed the plaintiff a duty of care. There is no difficulty in finding a duty of care owed by the defendant to its servant Reiball, but was a duty of care owed by the defendant to the plaintiff? The difficulty in answering this question in Australia in recent years has been the High Court's examination of the notion of proximity as being the touchstone "of the circumstances of which the common law would admit the existence of a relevant duty of care to avoid reasonably foreseeable injury to another …" per Deane J in Jaensch v Coffey (1984) 155 CLR 549 at 584-5. Proximity was thought by Brennan J to be an unsatisfactory expression or yard stick by which the existence of a duty of care could be ascertained because of its lack of conceptual precision: Jaensch v Coffey supra at 574, 575 and again in San Sebastion Pty Ltd v The Minister Administering Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 at 368-9. The High Court's struggles for conceptual exactitude in defining the existence of a duty of care are exemplified by its decision in Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147 where Kirby J said (at ALR 212):
"… It is tolerably clear that proximity's reign in this Court, at least as universal identifier of the existence of a duty of care at common law, has come to an end."
It would seem that the position long urged by Brennan CJ that the categories of cases in which duties of care were found should proceed incrementally and not be reference to some broad brushed formula represents the present state of development of this difficult area. In Pyrenees Shire Council Kirby J recognised the fundamental problem facing lawyers and courts in being able to provide consistent advice in this area among a series of conflicting authorities and urged the adoption of a three stage test which has much to commend it. In the same case he recognised the requirement for lawyers to be able to argue by analogy from duties of care found to exist in previous authorities.
Such is the case here.
It seems to me that the duty of care owed by the defendant to the plaintiff in this case is analogous to the rescue cases which emphasise that the duty of care owed to the rescuer is not a derivative of a primary duty owed to someone else but a separate duty arising out of the circumstances of the case: See for example Chapman v Hearse [1961] SASR 51 affirmed in the High Court at 106 CLR 112. In a situation where the defendant entered into a contract with the plaintiff's employer to transport both the plaintiff and his machine over a long distance on poor if not unmade roads in circumstances in which mechanical breakdown was entirely foreseeable it was likewise entirely foreseeable that the plaintiff would act in aid of the defendant's employee Reiball. It would be quite unforeseeable that the defendant could expect that the plaintiff would go and sit under a tree reading a book whilst Reiball attended to necessary repairs alone and unaided. The relationship of the plaintiff to the defendant was that the plaintiff was the defendant's passenger and the circumstances of their journey were such that the defendant owed the plaintiff a duty of care. That duty was breached by the conduct of the defendant and its employee Reiball in the circumstances I have already found and accordingly the plaintiff's claim for damages in negligence against the defendant must succeed.

Contributory negligence

Professor Fleming in The Law of Torts (8th Edition Sydney LBC 1992) at P.268 describes contributory negligence as:
"… A plaintiff's failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributory cause, together with the defendant's default, in bringing about his injury."
The defendant pleads that the plaintiff caused or contributed to his own injuries by placing his left hand where he did when he knew or should have known that Reiball was jacking or about to jack up the axle and that Reiball could not see him. Further particulars of alleged contributory negligence are pleaded.
I have no hesitation in rejecting the defendant's plea. In Electric Power Transmission Pty Ltd v Orgaz, FCt SCt of WA; unreported; Library No 7914; 3 November 1989 Ipp J stated:
"For contributory negligence to be established, it would have to be shown that not only that the employee knew, or ought to have known, that what he was doing was dangerous, but that he also knew that it was not required of him to so expose himself to that danger."

Here the plaintiff was placed in an invidious position by the negligence of the defendant and its employee Reiball and to say that he put his hand where he should not have is in effect to deny the negligence of the defendant and Reiball altogether, for in my opinion the plaintiff should not have been placed in the position he was in at all, and the fact that he put his left hand out to steady himself in the awkward position in which he was obliged by the defendant's negligence to work does not to me demonstrate any lack of care for his own protection.

First third party claim

The defendant, in its claim against the first third party seeks an indemnity from the first third party in respect of any damages or costs awarded against it in this action in consequence of two statutory policies of insurance it effected with the first third party in respect of each of the prime-mover and the low loader. It is not in dispute that each of the prime-mover and low loader were registered and were the subject of a compulsory third party insurance policy. As is well enough known, the terms of the compulsory third party insurance policies are contained in the schedule to the Motor Vehicle (Third Party Insurance) Act 1943 as amended. At all relevant times the policy provided that the first third party agreed to insure the owner of the motor vehicle described in the traffic license issued with the policy and any other person who drives that motor vehicle:
"… In respect of all liability for negligence which may be incurred by the owner or other person in respect of the death of or bodily injury to any person directly caused by, or by the driving of, that motor vehicle …".
In the interpretation provisions of the Motor Vehicle (Third Party Insurance) Act 1943 by s 3(7) it is provided that:
"For the purposes of this Act, the death of or bodily injury to any person shall not be taken to have been caused by a vehicle if it is not a consequence of the driving of that vehicle or of the vehicle running out of control."
The defendant sought to exploit the different terminology in s 3(7) of the Act and in the statutory policy of insurance in order to argue in effect that there was still potential to look at issues of causation in the same way as they were seen in Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500 before the amendments to the Act and statutory policy of insurance by the addition of the word "directly" before the words "caused by". In my opinion however the arguments that were advanced in this connection failed to recognise the provisions of s 4(1) of the Act which provides that:
"When any motor vehicle is on a road there is required to be in force in relation to the motor vehicle a contract of insurance entered into by the owner of the motor vehicle under which the owner has insured subject to and in accordance with this Act against any liability which may be incurred by the owner or any person who drives the motor vehicle in respect of the death of or bodily injury to any person directly caused by, or by the driving of, the motor vehicle."
The policy of insurance referred to in s 4 is clearly the policy in the schedule to the Act and there is no occasion to refer to s 3(7) of the Act. The policy contains all of the terms of the insurance and of course it is by reason of that policy that the first defendant claims its indemnity against the first third party.
The question of whether or not the word "directly" required that the causal connection between the injury and the vehicle or the driving of the vehicle would be more immediate than it would otherwise be if the ordinarily understood principles of causation in the common law were to be applied received close scrutiny in SGIC v Sinfein Pty Ltd (1996) 15 WAR 434.
(The common law's appreciation of the concept of causation was explained by the High Court in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506.)
Rejecting the submission that the word "directly" added nothing to the element of causation Ipp J said (at 454):
"It follows, in my view, that the term "directly caused by" and the phrase, "the death of or bodily injury to any person directly caused … by the driving of the vehicle" serves to limit the test for causation that would otherwise have applied. The effect is that the ordinary common law test of causation is not applicable. The limitations so introduced are those inherent in the term of "approximate cause" as it is understood in insurance law, and those to which Tadgell J referred in Transport Accident Commission v Jewell [1995] 1 VR 300. Such a construction is consistent with the rule of construction referred to by Booking J in Transport Accident Commission v Treloar [1992] 1 VR 441."
Parker J was of the same view. Page 462 he said:
"For the purposes of this present decision it is sufficient for me to indicate my view that 'directly caused by' was intended by the legislature to provide, and, in the statute and in policies of insurance reflecting the statutory provision should be construed as requiring a more proximate or direct relationship between a death or bodily injury and motor vehicle or its driving, than would be comprehended by the words 'caused by'."
An application for special leave to appeal to the High Court of Australia was refused. In the instant case it cannot be said that the plaintiff's injuries were directly caused by the driving of the vehicle in the sense that it was the proximate cause of the plaintiff's injuries. The most I think that can be said of the driving of the vehicle is that if the vehicle had not been driven and, probably, driven along such bad roads, the low loader's wheel bearings (I presume that’s what failed) would not have developed the problems they did necessitating the wheels being removed. Whether the plaintiff's injuries were directly caused by the vehicle ie. the low loader represents a greater difficulty because in one complete sense they were: part of the low loader crushed the plaintiff's hand, but it seems to me that the true direct cause was the negligent repair of the vehicle by Mr Reiball. On the face of it this may be a fine distinction but it is a distinction I draw nevertheless, and not without some misgiving as to its correctness, because I am mindful of what Parker J foreshadowed in SGIC v Sinfein Pty Ltd when he said:
"I expect that the significance to be properly attached to the phrase 'directly caused by' will only emerge from a course of decision involving a variety of factual situations." (At 462)
In my opinion the defendant's claim for an indemnity against the first third party must fail.

Second third party proceedings

The defendant also claims against the second third party for an indemnity pursuant to a policy of insurance that was issued in respect of its transport and storage business carried on under the name of UHS Transport Services from premises in Port Hedland effected with the second third party. The relevant policy is called a "General and Products Liability Policy" and by that policy the second third party agreed to indemnify the defendant "… for all sums which the insured shall be legally liable to pay as compensation in respect of personal injury or property damage (including personal injury or property damage within the products hazard) occurring during the policy period as a result of an Occurrence happening in connection with the business of the insured described in the annexed schedule." By an amended schedule of insurance the insured named is the defendant but there is an express extension to cover the business of UHS Transport and there then follow details of risks insured. There is a public liability risk insured in respect of the defendant's business of wool processing and broking at 50 Migwell Road Bibra Lake; a public liability cover in respect of the business of Coleman's Transport Services at 2 Stockdale Road O'Connor following which the following words appear:
"Occupiers Liability Only – cover excludes Products Liability, Care Custody and Control, Bailee or Carriers Liability." (Sic)
Next appears cover for public liability in respect of the defendant's business as Container Handlers/Farmer Soothsay Esperance; Public Liability in respect of the defendant's business as property owners / Lot 13 corner Russell and Anderson Roads Henderson. There is what appears to be a general public liability cover for all of the defendant's business and finally a public liability cover in respect of the business UHS Transport Pty Ltd, 13 Peaweah Street Port Hedland. I was informed that UHS Transport is not incorporated and that this is a misdescription of that business. No argument was addressed to me as to whether or not the defendant had a general public liability cover as I have interpolated to be the meaning of the entry at the top of p 2 of the amended schedule of insurance under the heading "Details of risks insured". The argument was confined to two issues, the first being whether there was an exclusion in respect of any claim "… arising out of the use of any vehicle owned by or in the physical or legal control of [the defendant]", and the second being whether or not cover extended to the defendant in respect of its business Coleman's Transport Services or whether in truth the operating entity which should enjoy the benefit of the public liability cover in respect of the plaintiff's injuries was the business known as UHS Transport. The policy, under the heading "exclusions" contains the following provision:
"This policy does not cover:
9.Any liability arising out of the use of any Vehicle owned by or in the physical or legal control of the insured:
(a)which is required to be registered by virtue of any legislation relating to Vehicles; or
(b)in respect of which insurance is required by virtue of any legislation relating to Vehicles;
Exclusion 9. shall not apply to Vehicles described in Exclusion 2(c)(ii)."
The word "Vehicles" is defined in the policy in that part of the policy headed "Definitions" as follows:
"Any type of machine on wheels or on caterpillar tracks made or intended to be self propelled by mechanical power."
The second third party argues that the policy does not extend to the low loader because the low loader and it's prime mover are to be regarded as integral units and as both prime mover and low loader have to be registered they are within the exclusion clause.
In my opinion this argument is self contradictory. The low loader is a vehicle which has to be registered pursuant to the provisions of the Road Traffic Act (1984) WA and at all relevant times the low loader was registered. Further, it was required to be insured and by reason of its registration was in fact insured. This is clearly indicative to me that it was a separate vehicle from the prime mover and not to be regarded as a vehicle which could only be considered as part of an integrated unit comprising the prime mover and low loader together when linked. The low loader is clearly not a vehicle made or intended to be self propelled by mechanical power and accordingly, on the face of it, I find that the policy does not exclude claims made in respect of the low loader.
The second issue too may be shortly disposed of. The plaintiff said that he was a passenger with Coleman's when he sustained his injury. The low loader depicted in the photographs prominently displays the signs "Coleman's" and the invoice for the work sent by the defendant to Brambles in Port Hedland is seen to have been sent by "Container Handlers Pty Ltd - Coleman's Transport Services – PO Box 1096 Bibra Lake WA 6163."
When one considers the schedule to the policy with the extension of cover to Coleman's Transport Services, it is in the following terms:

Public Liability

Description: Coleman's Transport Services - 2 Stockdale Road, O'Connor 6163
Occupiers liability only - cover excludes products liability, care, custody and control, bailee or carriers liability … "
This shows that the defendant and second third party expressly limited the nature of the insurance cover for the business entity Coleman's Transport Services. In my opinion the policy does not respond to the defendant's claim for indemnity in respect of the plaintiff's claim against it.

Summary

Accordingly I find the plaintiff's claim established and dismiss the defendant's claims for findings of contributory negligence by the plaintiff and for indemnities from each of the first and second third parties.