Sykes Transport Pty Ltd v Jones
[2003] WASCA 287
•27 NOVEMBER 2003
SYKES TRANSPORT PTY LTD -v- JONES [2003] WASCA 287
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 287 | |
| 27/11/2003 | |||
| Case No: | FUL:27/2003 | 4 NOVEMBER 2003 | |
| Coram: | MALCOLM CJ MILLER J WALLWORK AJ | 4/11/03 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Decision of trial Judge set aside Matter remitted to District Court for retrial | ||
| B | |||
| PDF Version |
| Parties: | SYKES TRANSPORT PTY LTD LYLE RICHARD JONES |
Catchwords: | Negligence Employer's liability Employer's duty of care Whether suitable driver's seat provided in truck driven by appellant Whether trial Judge made sufficient findings of fact Whether findings made by trial Judge were related to particulars of negligence pleaded Turns on own facts |
Legislation: | Nil |
Case References: | Fox v Percy (2003) 197 ALR 201 Garrett v Nicholson (1999) 21 WAR 226 Lloyd v Faraone [1989] WAR 154 Abalos v Australian Postal Commission (1990) 171 CLR 167 Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291 Devries & Anor v Australian National Railways Commission (1993) 177 CLR 472 Hamilton v NuRoof (WA) Pty Ltd (1956) 96 CLR 18 Schellenberg v Tunnell Holdings Pty Ltd (2000) 200 CLR 121 Warren v Coombs & Anor (1979) 142 CLR 531 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SYKES TRANSPORT PTY LTD -v- JONES [2003] WASCA 287 CORAM : MALCOLM CJ
- MILLER J
WALLWORK AJ
- Appellant
AND
LYLE RICHARD JONES
Respondent
Catchwords:
Negligence - Employer's liability - Employer's duty of care - Whether suitable driver's seat provided in truck driven by appellant - Whether trial Judge made sufficient findings of fact - Whether findings made by trial Judge were related to particulars of negligence pleaded - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Decision of trial Judge set aside
Matter remitted to District Court for retrial
Category: B
Representation:
Counsel:
Appellant : Mr J G Staude
Respondent : Mr I L K Marshall
Solicitors:
Appellant : T H F Caspersz
Respondent : S C Nigam & Co
Case(s) referred to in judgment(s):
Fox v Percy (2003) 197 ALR 201
Garrett v Nicholson (1999) 21 WAR 226
Lloyd v Faraone [1989] WAR 154
Case(s) also cited:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Devries & Anor v Australian National Railways Commission (1993) 177 CLR 472
Hamilton v NuRoof (WA) Pty Ltd (1956) 96 CLR 18
Schellenberg v Tunnell Holdings Pty Ltd (2000) 200 CLR 121
Warren v Coombs & Anor (1979) 142 CLR 531
Wyong Shire Council v Shirt (1980) 146 CLR 40
(Page 3)
1 JUDGMENT OF THE COURT: Following the hearing of this appeal, the Court allowed the appeal, set aside the decision of the learned trial Judge and remitted the matter to the District Court for retrial. We undertook to deliver reasons for the decision made at the conclusion of the hearing of the appeal and these are the reasons.
2 The appellant appealed from a judgment of Greaves C, delivered in the District Court at Perth on 12 February 2003, when the learned Commissioner awarded the respondent damages of $347,996.05 in consequence of injuries, loss and damage allegedly sustained by the respondent as a result of an incident that occurred on 15 August 1997 whilst the respondent was driving a K100 Kenworth prime mover in the course of his employment with the appellant, from Perth to Eucla.
3 The respondent's case was that the prime mover was fitted with a driver's seat which was defective in that it:
"(a) was tilted forward requiring the plaintiff to constantly push himself back into the driver's seat to stay in;
(b) contained a leaked air spring requiring the plaintiff to put a wooden block underneath the front of the driver's seat to obtain the necessary height to view the road."
4 The respondent contended that as a consequence of driving the prime mover in that condition, he injured his back "due to the awkward driving position he was required to adopt and the deficiency of the driver's seat to properly dampen the vibrations caused by the road surface whilst the truck was in motion".
5 The statement of claim of the respondent contended that the appellant breached its duty of care owed to the respondent and/or was negligent and/or was in breach of a contract of employment between the appellant and the respondent. It was contended that the appellant had failed to take all reasonable precautions for the safety of the respondent when the appellant knew that the respondent would be required to drive the prime mover for prolonged periods over long distances on a regular basis; had exposed the respondent to risk of damage of injury of which it knew or ought to have known by reason of the requirement to drive the truck for prolonged periods over such long distances; and failed to provide a safe system of work for the respondent.
6 In relation to the alleged failure to take reasonable precautions for the safety of the respondent and the alleged exposure of the respondent to risk of damage or injury, the particulars pleaded were as follows:
(Page 4)
- "The Defendant, its servants or agents;
(a) failed to take all reasonable precautions for the safety of the Plaintiff in that the Defendant with the knowledge that the Plaintiff would be required to drive the truck for prolonged periods over long distances on a regular basis:
(i) failed to provide a suitable driver's seat as recommended by the manufacturer of the truck;
(ii) provided the truck with a defective driver's seat in that the driver's seat was tilted forward at an angle of about 45 degrees requiring the plaintiff to constantly push himself back into the seat to stay in;
(iii) provided the driver's seat containing a leaked air bag spring compelling the plaintiff to put a wooden block underneath the front of the driver's seat to obtain the necessary height to view the road which caused excessive vibration transmitting directly to the plaintiff's body."
"The Defendant:
(i) failed to implement and enforce a safety policy to carry out regular maintenance on the driver's seat of the truck;
(ii) failed to carry out a risk assessment on the task of the Plaintiff driving the truck on long distances with unsuitable and defective driver's seat prior to instructing him on his driving duties;
(iii) failed to warn the Plaintiff as to the risk of injury in the event of him driving the truck for prolonged periods with an unsuitable and defective driver's seat;
(iv) required the Plaintiff to drive the truck with the knowledge that the driver's seat was unsuitable and defective;
(Page 5)
- (v) caused or permitted the driver's seat of the truck to remain in a condition which made it unsafe for the purpose for which it was provided."
8 The appellant denied the allegations of negligence, breach of statutory duty and/or breach of contract and contended, in its defence, that if the respondent had suffered injury, loss or damage as alleged, it was in consequence of pre-existing degenerative changes in the spine caused by previous trauma and/or natural changes. In the alternative, it was contended that any injury or injuries sustained by the respondent as a result of the alleged accident were minor and transient in nature and the respondent had wholly or substantially recovered from any such injury and/or disability.
9 There were third party proceedings between the appellant and its insurer, but nothing turns upon those proceedings in this appeal.
10 The learned Commissioner considered that the pleadings gave rise to three questions of fact for determination in relation to the issue of liability. The Commissioner set those questions out as follows:
"(i) Did the plaintiff suffer the alleged injury?
(ii) Did the plaintiff suffer the alleged injury in the manner alleged?
(iii) Was the injury wholly or partially attributable to pre-existing degenerative changes in the spine caused by previous trauma or age?"
11 In answer to the first question, the learned Commissioner reviewed the testimony of the medical experts and concluded that, on the evidence of Mr Bryant Stokes, he was satisfied on the balance of probabilities that on or about 16 August 1997, the respondent sustained a disc herniation in the lower back as the respondent had alleged in the statement of claim, such herniation being aggravated over ensuing weeks whilst the respondent continued physical work and until he finally collapsed.
12 In answer to the third question, the learned Commissioner again accepted the evidence of Mr Bryant Stokes, concluding that it was more likely than not that the disc herniation sustained by the respondent had occurred during his second "border trip" (Perth to Eucla). The learned Commissioner concluded that given the respondent's susceptibility to a disc herniation because of his pre-existing degenerative changes in the
(Page 6)
- spine, it was more likely than not that there was a relationship between the condition of the driver's seat in the prime mover and the driving position which the seat required the respondent to adopt and the occurrence of the disc herniation.
13 The second question posed by the learned Commissioner required the Commissioner to make findings of fact in relation to the evidence whether the respondent had made out the contentions in the statement of claim in relation to breach of duty of care and/or negligence and/or breach of contract.
14 The learned Commissioner recounted the evidence of the respondent to the effect that prior to his journey from Perth to Eucla on 15 August 1997 he had complained to a Mr David Sykes, manager of the appellant's Perth depot, that the seat in the prime mover he was required to drive was "no good". The respondent contended that after his first journey in the truck he had made this complaint to Sykes, but that nothing had been done to the seat which had effectively malfunctioned on the journey of 15 August 1997. The evidence of the respondent on the subject was recounted by the learned Commissioner as follows:
"The second journey I got going and I couldn’t keep myself on the seat actually because of the decline of the seat. I just kept on sliding forward, and it got that sore on my bloody backside.
… And by the time that I stopped at Norseman, had breakfast, shower and whatever, bit of a sleep, then I got going again and then the seat started to deflate itself and I got down around between Norseman and Balladonia. I had to put a block of wood on it, a couple of blocks of wood, to try and stop the seat from going to the floor.
… it stopped the seat from going flat to the floor so I could, you know, look over the dash properly and see what was going on, so I could drive the truck properly."
15 The learned Commissioner reviewed the cross-examination of the respondent, quoting substantial portions from the cross-examination to the effect that the seat had actually "collapsed" on "the other side of Norseman". The respondent's evidence was that the air bags "creased" and as a result he was "just about sitting on them on the ground:" He contended that the seat had gradually started to go down during the trip,
(Page 7)
- until by the time he had got to Norseman, it "just - boom". He said that the base of the seat was on an angle of about 25 degrees and, to keep himself on the seat, he had to keep pushing himself back on the seat to avoid sliding off it because of the angle.
16 The learned Commissioner pointed out that the respondent's evidence was that the seat had sloped forward to 20 - 25 degrees when he placed his weight on the base of the seat, but before placing his weight on the seat it was basically flat. The Commissioner quoted the respondent's testimony that after the seat had collapsed the other side of Norseman he had been forced to put blocks of wood under it to keep it up.
17 After the trip of 15 August 1997, the respondent complained to Sykes about the seat in the prime mover and, as a result, Sykes said he would pack the seat up with washers. The respondent contended that this remedy was unsatisfactory and some time thereafter the appellant purchased a new seat which the respondent installed in the prime mover.
18 The learned Commissioner recited the testimony of Sykes, to the effect that the respondent had, after the first trip in the vehicle, made a complaint that the seat was "uncomfortable" because the angle of the base sloped forward. Sykes said that on visual inspection he could see no problem at all with the angle of the base, but he suggested placing a spacer under the front of the seat to change the angle of the base. According to his testimony, a Mr Sheehan had "re-conditioned" the seat before the respondent made his second border trip. Sykes confirmed that after that second trip, the respondent had returned in pain and asked for replacement of the seat, which was done before the third border trip on 27 August 1997.
19 The learned Commissioner pointed out that Sykes in his testimony had said there was no adjustment for the tilt of the base of the seat and the only way it could be tilted was to mount it at an angle. The seat had been removed from the truck used by the respondent and subsequently placed in another truck. At some later time, the air bag in the seat had developed a problem, but at no time had the respondent made any complaint about the function of the air bag in August 1997. Nor were there any maintenance records which mentioned any repair to the air bag at that time. Sykes added that he had driven the truck himself in early August 1997 and had had experienced no problems with the air bag, nor the angle of the seat, which he described as being "horizontal".
(Page 8)
20 The learned Commissioner set out in some detail the cross-examination of Sykes, and in particular his cross-examination on a prior inconsistent statement, being a statutory declaration Sykes had made on 15 December 1997, at which time he had stated that in September 1997 he accepted the seat in question "had a forward tilt" although this was not seen as a problem until the respondent had raised the issue.
21 Having reviewed all of this evidence, the learned Commissioner made the following findings:
(i) "On the evidence of the plaintiff and Mr David Sykes, I find that the seat sloped too far forward for the plaintiff's personal posture or personal sitting position. As he said at p 475 of the transcript, 'that is the only way to make sense out of it.' Such conclusion is consistent with the evidence of the plaintiff that the seat sloped only when he sat on it and with the evidence of Mr Sykes that on inspection the seat looked horizontal and that the angle of the base of the seat could not be adjusted. It is only consistent with the plaintiff's complaint that the seat was uncomfortable because it sloped."
(ii) "I find that the seat sloped too far forward for his personal posture obviously when, and only when, the plaintiff sat in it. As a result, as alleged in par 6(1)(a) of the amended statement of claim, the plaintiff found he was required to push himself back into the driver's seat to stay in."
(iii) "I accept the evidence of the plaintiff that when he sat in the seat he sloped too far forward to remain comfortably in the seat and at the same time have an adequate view of the road."
(iv) "I find that in constantly pushing himself back into the driver's seat in order to obtain an adequate view of the road, the plaintiff sustained a disc herniation in the manner alleged and in the manner Mr Stokes believed to be likely."
(v) "There is no evidence that the seat contained a leaked air spring as alleged in par 6(1)(b) of the amended
(Page 9)
- statement of claim. … I accept the evidence of the plaintiff that he put a wooden block or gluts underneath the front of the driver's seat to obtain the necessary height to view the road, as alleged. The evidence of Mr David Sykes, Mr Michael Sheehan, Mr Daniel Hankin and Mr William Reid that they found no fault with the air bag mechanism before and after the second trip does not detract from these conclusions about the manner in which the plaintiff sustained the alleged injury."
22 Unfortunately, the learned Commissioner made no specific findings on the issue of credibility as it arose between the respondent on the one hand and Sykes on the other. Conclusions on credibility of the witnesses were essential. The fifth conclusion reached by the learned Commissioner illustrates the problem: on the one hand, the Commissioner accepted the evidence of the respondent in relation to placing a wooden block or gluts underneath the front of the driver's seat to obtain the necessary height of the seat, but on the other, the Commissioner found no fault with the evidence of four witnesses called by the appellant, to the effect that they found no fault with the air bag mechanism before and after the second trip. The learned Commissioner's conclusion that the evidence of these four witnesses did not detract from the conclusion the Commissioner had reached about the manner in which the respondent sustained his injury, is difficult to reconcile with the conclusion that it was necessary for the respondent to put a wooden block or gluts underneath the driver's seat to obtain the necessary height to view the road.
23 Counsel for the respondent argued at the hearing of the appeal that the findings on credibility were implicit in the learned Commissioner's judgment, but we disagree. There were no specific conclusions on credibility reached by the learned Commissioner. In relation to the first conclusion reached by the Commissioner, there was an acceptance of the evidence of both the respondent and Sykes, yet the testimony of those two witnesses cannot be reconciled in the sense that the respondent complained that there was a fault with the seat mechanism and Sykes contended that there was no fault with it at all.
24 The learned Commissioner's conclusion that the seat sloped too far forward for the personal posture of the respondent when, and only when he sat in it, was not based upon any conclusion of fact as to what exactly was wrong with the seat. In dealing with the third party proceedings, the learned Commissioner specifically found that there
(Page 10)
- was no defect in the seat within the meaning of the warranty within the relevant policy of insurance, concluding the seat itself was not in an unsafe or damaged condition. The Commissioner found that the design was unsuited to the plaintiff in carrying out his duties as a long-distance truck driver, so that the plaintiff was engaged in an unsafe system of working.
25 What is missing from the learned Judge's findings of fact is any analysis of the evidence and a conclusion as to what exactly was at fault (if anything) with the seat. It was one thing for the Commissioner to say that he accepted the evidence of the respondent that when he sat in the seat it sloped too far forward for his comfort, but it was another to say that on inspection the seat gave every indication of being horizontal and had a mechanism whereby the angle of the base of the seat could not be adjusted in any way. These two conclusions cannot be easily reconciled.
26 There is a further problem. The particulars of breach of duty of care/negligence/breach of contract were not addressed by the learned Commissioner. Save that the Commissioner concluded that the plea contained in par 6(1)(a) of the statement of claim was made out in part, namely that the seat tilted forward, requiring the respondent to constantly push himself back into it to stay in, the only other reference to the particulars was contained in the conclusion of the learned Commissioner that there was no evidence that the seat contained a leaked air (bag) spring, as alleged in par 6(1)(b). This particular was repeated in par 10(a)(iii), 10(b) and 10(b)(iii) of the statement of claim.
27 Unfortunately, the conclusion that "as alleged in par 6(1)(a) of the amended statement of claim, the plaintiff found he was required to push himself back into the driver's seat to stay in" addressed only part of the plea contained within par 6(1)(a). Paragraph (a) was preceded with the contention that the prime mover was "fitted with a driver's seat which was defective in that it was tilted forward, requiring the plaintiff to constantly push himself back into the driver's seat to stay in." As I have already pointed out, the learned Commissioner fell short of concluding that the seat was defective in any way and in the third party proceedings specifically found that it was not defective.
28 The particulars of alleged breach of duty of care/negligence/breach of contract itemised three specific matters in relation to which the learned Commissioner was obliged to make findings. It appears from the evidence that there was no testimony from any witness to support the contention that there had been a failure to provide a suitable driver's
(Page 11)
- seat as recommended by the manufacturer of the truck. Nor was there any evidence to establish that the appellant had provided the truck with a defective driver's seat in that it was tilted forward at an angle of about 45 degrees. Nor was there any evidence that the driver's seat contained a leaked air bag spring. In relation to these particulars, the learned Commissioner found (a) that the respondent was required to constantly push himself back into the seat (but no more); and (b) the respondent was compelled to put a wooden block under the front of the seat to obtain height (but not that this was because of a leaked air bag spring).
29 The actual findings of the learned Commissioner were tangential to the particulars of breach of duty/negligence/breach of contract which were pleaded. There were limited findings in relation to some of the particulars, but no overall conclusions as to whether or not the respondent had made out the case for which he contended. Whilst the learned Commissioner accepted that when the respondent sat in the seat he sloped too far forward to remain comfortably in it and at the same time have an adequate view of the road and that he was forced to constantly push himself back into the seat to obtain that view, there was no finding by the learned Commissioner that (i) the driver's seat was defective because it tilted forward at an angle of 45 degrees; and (ii) that there was a leaked air bag spring which compelled the respondent to make modifications to the seat and, as a result, there was excessive vibration which transmitted directly to his body.
30 Nor were there any conclusions in relation to the contentions that there was failure to provide a safe system of work. No conclusions were reached in relation to any of the particulars pleaded in par 10(c)(i)-(v).
31 The learned Commissioner revealed his reasons for judgment in this case and to that extent complied with the obligation imposed upon him to reveal those reasons to such an extent as to enable this Court to consider and determine whether or not the judgment was erroneous: Lloyd v Faraone [1989] WAR 154, per Malcolm CJ at 163. However, as Owen J pointed out in Garrett v Nicholson (1999) 21 WAR 226 (at [73]), the reasons of the learned Commissioner were required to "disclose adequately the intellectual process" which resulted in the determination. In this case, it is difficult to discern the intellectual process which led to certain conclusions reached by the learned Commissioner, which failed to address the particulars of breach of duty of care/negligence/breach of contract pleaded by the respondent in support of his case.
(Page 12)
32 The appellant, in its notice of appeal, raised three specific grounds. They were respectively: (1) that the learned Commissioner had erred in concluding on the issue of foreseeability that the appellant ought reasonably to have foreseen that if its truck seat sloped too far forward for the personal posture of the respondent when he sat in it, the respondent might injure his back; (2) in relation to the issue of breach of duty of care, the learned Commissioner had erred in concluding that the appellant had failed to provide a safe system of work by not replacing the seat in response to the respondent's complaint that it was uncomfortable; and (3) in relation to the issue of causation, the learned Commissioner erred in finding that the respondent's disc herniation was caused by the respondent pushing himself back into the driver's seat in order to obtain an adequate view of the road.
33 These three grounds of appeal overlook the fact that the learned Commissioner failed to make sufficient findings on the evidence from which specific findings in respect of the issues of foreseeability, breach of duty and causation could be properly be made.
34 The respondent, in his notice of contention (as amended at the hearing of the appeal) sought to have the decision of the learned Commissioner affirmed on grounds other than those relied upon by the Commissioner. The notice of contention effectively seeks a complete review of the evidence by this Court, inviting us to conclude that the particulars of negligence pleaded were in fact made out.
35 However, the difficulty with this case is that the learned Commissioner made findings of fact, being findings which were generally favourable to the respondent, but without any specific conclusions on the issue of credibility of witnesses and without addressing the particulars of negligence which were relied upon by the respondent in support of his case.
36 This was not a case in which findings were made by the learned Commissioner based upon the credibility of witnesses and where it is argued that those findings were inconsistent with the incontrovertible facts. To the contrary, the learned Commissioner made no findings about credibility and the findings that were made were tangential to the respondent's case. This is not a case in which we are able to conduct a complete review of the trial by way of rehearing because the appeal is based upon credibility findings: Fox v Percy (2003) 197 ALR 201.
37 It is clear that the Full Court in the discharge of its appellate function is required on a rehearing of a case to ensure, within the
(Page 13)
- appellate process, "finality of litigation, correctly decided": Fox v Percy (supra) per Gleeson CJ, Gummow and Kirby JJ at [44]. However, an appeal by way of rehearing in the Full Court requires a clear factual basis upon which the rehearing can be conducted. In this case, the learned Commissioner made findings of fact which were not based upon conclusions on the credibility of witnesses, nor upon the case pleaded by the respondent at trial.
38 The grounds of appeal advanced by the appellant call for a review of the conclusions of the learned Commissioner on the issues of foreseeability, breach of duty of care and causation. However, it is not possible for us to review those conclusions when the foundation of fact upon which they were based reveals a failure to address the issues of credibility and a failure to address the case propounded by the respondent at trial. For the same reason, the notice of contention (which contains a multiplicity of grounds upon which it is contended that the decision below should be affirmed) cannot properly be addressed in the absence of positive findings on the issue of credibility of witnesses and the particulars of negligence which were advanced by the respondent in the pleadings and in his case at trial.
39 Although the appeal is by way of rehearing, it is not possible for us to reach conclusions from the transcript of evidence which necessitate findings of credibility between the witnesses on the critical issues of: suitability of the driver's seat in the prime mover; what exactly was wrong (if anything) with the seat; how the evidence of some witnesses that it had no fault whatever can be reconciled with the evidence of the respondent that it created a problem for him when he sat in it; and what (if anything) was wrong with the air bag spring which appears to have compelled the respondent to do something about that component of the seat, but which other witnesses contended was faultless. All of these are issues which require a trial Judge to rehear the evidence and reach appropriate conclusions on credibility and to make findings of fact on the particulars of breach of duty of care/negligence/breach of contract pleaded by the respondent in support of his case.
40 It is for these reasons that we were of the view at the hearing of the appeal that the only course open was to allow the appeal, set aside the judgment of the learned Commissioner and remit the matter to the District Court for rehearing.
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