VWA v Scroggie
[2009] VCC 635
•12 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-02133
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| PETER SCROGGIE | Defendant |
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| JUDGE: | HIS HONOUR JUDGE CAMPBELL |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 24th, 25th, 26th and 27th February 2009 |
| DATE OF JUDGMENT: | 12 June 2009 |
| CASE MAY BE CITED AS: | VWA v Scroggie |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0635 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – recovery action under s.138 of the Act – unloading hay bales from trailer – unsecured bale falls from truck and injures worker.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Simpson | Dibbs Abbott Stillman |
| For the Defendant | Mr J L Batten | Norris Coates |
| HIS HONOUR: |
1 This is an action brought by the Victorian WorkCover Authority (“VWA”) against Mr Peter Scroggie (“Scroggie”) pursuant to s.138 of the Accident Compensation Act (“the Act”).
2 VWA seeks from Scroggie, in accordance with the section, indemnity in respect to sums of compensation it has or may be called upon in the future to make to or on behalf of a Mr Moloney (“Moloney”).
3 It is desirable at the outset to give an overview of the circumstances giving rise to the action before descending to the evidence.
4 From 1997 until recently, Scroggie and his wife operated as dairy farmers on their property at Sheens Road, Illowa. Illowa is between Warrnambool and Port Fairy. In early 2005, they were milking about 250 head. They also had, or leased, another property at Mepunga West, from which no doubt amongst other things, they cut hay.
5 Mr and Mrs Moloney live in Koroit. Moloney has for many years operated from there a business called “Terry Moloney Farm Machinery and Hay Sales”. To all intents and purposes he is the sole operator of the business, subject to what follows. Much of his business involves cartage of hay. For that purpose he has a long semi-trailer and a front-end loader.
6 The Moloneys are also the directors of a company, Mt Horvat Pty Ltd (“Horvat”). There is also a family trust, a discretionary trust I take it – the precise name of which I do not know. Horvat is also the proprietor of the business name referred to above, although the exhibited Victorian business names extract certifies the name to be “Terry Moloney Farm Machinery Sales and Service”.
7 No doubt for tax and other reasons, Moloney is not paid a wage by Horvat, but receives a distribution from the trust each year. It seems that the distribution varies from year to year and bears little or no relationship to what might otherwise be called wages. The Moloneys purported in evidence to have a vague and imperfect understanding of this financial setup, saying that “their accountant” is the person to ask in respect of any meaningful enquiry in this regard.
8 Over the years, Scroggie has employed Moloney to cart hay and other dairy feed items to his property. It seems to have been a trusting relationship and the only paperwork involved in such transactions seems to be the invoices rendered by Moloney to Scroggie at the conclusion of a particular job. It seems that requests by Scroggie to Moloney to undertake various cartage tasks was initiated by private conversations or telephone conversations. Moloney does not appear to have kept, or did not produce, other than invoices, any paperwork in respect of such transactions, nor did he appear to keep a log book in respect to the movements of his truck in the course of his business.
9 In January 2005, Scroggie engaged Moloney to cart hay from the Mepunga property to the Illowa property. The balance of that which was not going to Illowa was to be stacked by Moloney in a farm lane at Mepunga.
10 On the 13th January 2005, Moloney delivered one or two truckloads of hay to Illowa. There is a factual dispute as to how many loads were delivered that day.
11 The load in question consisted of forty-two round bales of hay loaded by Moloney at Mepunga, using his own front-end loader that he had driven from Koroit to that property for the purpose.
12 Each bale of hay weighs about 400 kilograms and is about 5 feet in diameter and about 4 feet in height. Each is compressed by a nylon form of netting.
13 Upon Moloney’s arrival at Illowa with his truckload of hay, unloading of the hay commenced. Scroggie was using his tractor, equipped for the purpose, to unload the hay. There is also a dispute as to the suitability of that equipment for that purpose.
14 Early on in the course of the process of unloading, bales of hay became dislodged and fell from the truck, one of which struck Moloney, causing him some serious injuries (“the incident”).
15 Moloney sued Scroggie for damages alleging, inter alia, negligence and breach by Scroggie of his duty as an occupier of the Illowa property.
16 Scroggie in turn denied breach of duty, alleged contributory negligence, and joined Horvat as a third-party, alleging, inter alia, a breach of its duty as an employer towards its employee, Moloney.
17 VWA then instituted this action.
18 All of these actions came on before me in Warrnambool. Application was made by VWA for this action to be tried simultaneously with that of Moloney’s action against Scroggie. Limited leave in this regard was given.
19 Then counsel for Moloney and Scroggie announced that they had resolved their differences and sought orders by consent. However, further dispute occurred as to the terms of such order. I am still to resolve that problem.
20 Part of the sticking point, of course, is the fact that VWA has paid some $89,000 by way of medical and like expenses for or on behalf of Moloney. Hence this action proceeded for indemnity in respect of those and future expenses that VWA may be called upon to pay on behalf of Moloney.
21 It therefore fell upon VWA to conduct Moloney’s case against Scroggie, bearing in mind the requirements of s.138 of the Act and the formulae contained therein.
22 Amongst the issues which were much debated before me, and said by Mr Simpson to be a critical issue, was just what was the arrangement between Moloney and Scroggie as to the cartage and unloading of the hay on Scroggie’s property? On the one hand Moloney says that his task was over once he arrived at the property and it was then Scroggie’s obligation to unload the hay.
23 On the other hand Scroggie says that Moloney, as the contractor, and whose truck it was and who had loaded the hay, was responsible or in charge of unloading, albeit that Scroggie and his tractor were doing the physical task of unloading. In effect, Scroggie says that at all times he was under the direction of Moloney in this regard.
24 I shall return to the pleadings at a later point. For the moment I will review the evidence surrounding the “incident” itself.
25 Moloney said he had an arrangement with Scroggie in which he was asked to cart hay to Illowa and to also stack some bales at Mepunga. It seems it must have been as a result of a phone call from Scroggie. The details as to when the carting would be done and how much it would cost Scroggie, to say the least, are vague and in part non-existent.
26 Moloney was vague as to when the balance of the hay was to be carted after the first – and he said only – load on the 13th January 2005. He said he drove his front-end loader from Koroit to Mepunga and then got a lift back to Koroit to collect his semitrailer, which he then drove back to Mepunga and loaded the maximum number of bales he could get on his truck. This, the evidence suggests, was forty-two.
27 Much reference throughout the evidence was made to a series of photographs taken the day following the incident, that is on the 14th January 2005, by a Ms Dennis, a WorkSafe field officer inspector. Reference should be made to them if necessary. Those photographs show, inter alia, the truck with the portion of its load that did not fall off, in situ, together with a number of bales on the ground – that is, those that became dislodged from the truck at the time of the incident.
28 Moloney described the loading of the bales as having been done one at a time with his front-end loader. He loaded eighteen bales, standing on their base, nine aside on the tray. He then loaded twelve bales on either side on top of those bales on the base. This method, he said, was to maximise the load that could be put on the truck and was “an industry recognised way (sic) of putting them on”.
29 As the photographs show, the last two bales on the very end of the truck were secured separately by a strap around them, apparently to stop them falling off. They overhung the end of the tray.
30 The rest of the load was secured by means of twelve straps across the load from the nearside to the offside. These straps were thrown over the load by Moloney and then ratcheted down on a winch arrangement on hangers on the nearside of the truck.
31 It is apparent from the photographs that it was not possible to load the bales on the base of the tray without there being some overhang of the bales, that is to say that the combined width of two bales was wider than the tray of the truck.
32 Thus, as the photographs show, there was a clear overhang, particularly on the nearside of the truck of bales beyond the tray. Indeed this overhang was measured by Ms Dennis at just over 500-millimetres at the rear nearside of the tray. On the nearside front of the tray the overhang is approximately 300- millimetres. She said that she also measured the overhang of the uppermost bale at the front nearside of the truck, which was approximately 400- millimetres.
33 This latter measurement is open to some doubt, in the sense that at the time the measurement was made the retaining straps had been undone and the truck was parked on a slope, the lower side of which was the nearside of the truck.
34 Of this, more anon, but it is clear that a not insubstantial portion of the bales, upper and lower, overhung the tray of the truck. And as the photographs show, Moloney would have had to bend down and under the overhang to release the ratchets on the winches to enable the straps to be unhooked from the offside of the tray.
35 There was also some, by comparison, minor, overhang of the bales on the offside of the truck.
36 Ms Dennis, in evidence, described the bales as what are “commonly called 4 by 5 size bales”. By that I take it to mean that the bales were, when standing on their end, 5-feet wide and 4-feet high. This would seem to be confirmed by Scroggie, who described the tynes on his tractor used to unload round bales as being 4-feet apart. This enabled two bales to be picked up by inserting the tynes in the length-wise bales – as was loaded on the top of Moloney’s truck – so that the ends of the two bales in effect lock the load thus impaled.
37 There was also evidence from Scroggie that the width of the tray of the truck was about 8-feet or 8-foot-2, or, say, 2.5-metres. If this be correct, then two bales on their ends equates to a width of 10-feet or thereabouts. Using this method of stacking then on the tray means an overhang of the bales over the sides was inevitable. Ms Dennis’ measurements would seem to confirm this. Indeed Moloney said it was an acceptable practice. This latter assertion is subject to confusion. The Road Safety (Vehicles) Regulations 1999 purport to give a maximum width of load for semitrailers carrying hay as 2.5-metres for one form of semitrailer, and 3-metres for another.
38 To my mind the measurements and dimensions given, together with the photographs, suggest that the load was an overload, if not in terms of weight, certainly in terms of cramming on as much as could be into one load and the bias of the overhang to the nearside of the truck looks distinctly perilous. Ms Dennis agreed, at least in part, with that sentiment.
39 I return to Moloney’s evidence as to the course of events that afternoon.
40 Having loaded the truck at Mepunga, he proceeded to Illowa. He said he stopped to check the load at Allansford before going through Warrnambool, and that the load had given him no concern at that point.
41 He said he arrived at Illowa at approximately 6.40 pm and drove into Scroggie’s paddock where the hay was to be unloaded.
42 It emerged that earlier Scroggie had made a break in the paddock fence to enable the truck to enter.
43 There had to have been therefore some communication, probably by telephone, between Moloney and Scroggie, warning of Moloney’s bringing hay in on that day. Moloney gave no evidence about that and Scroggie could not really recall.
44 The paddock that Moloney drove into has a gentle slope from south to north. It can be seen in the photographs. Moloney said that he initially parked up and down the slope, with the prime mover facing up the slope. Scroggie, he said, had arrived on his tractor. Moloney said he was then requested by Scroggie to park across the slope, with the prime mover facing east, which he proceeded to do.
45 This allegation is also denied by Scroggie.
46 The effect of this parking was that there was a lower and higher side of the truck. This, so Moloney said, “accentuated the top bales by hanging out further”. The slope and the position of the truck and bales left on the vehicle is well-depicted in the photographs.
47 Moloney then undid the twelve winches on the nearside and then undid the retaining clips on the opposite side.
48 He then returned to the nearside and started winding the straps onto the winches. Scroggie, he said, may have been talking to him at this stage, but he could not recall.
49 Moloney had wound up seven of the winches and was on the eighth, he said, when hay bales became dislodged from the truck. He was struck by one of them and rendered, at least temporarily, unconscious.
50 Moloney’s account of what happened just before the dislodgment of the hay is perhaps unsurprisingly, not totally clear.
51 He said that the last thing that he had said to Scroggie was: “You can start now.” This meant that Scroggie was waiting to be told that he could use his tractor to commence unloading.
52 When asked what he had meant by that statement, Moloney said: “I thought I was well and truly out of harm’s way, that he could start at the back in a responsible manner.” (The use of the word “responsible” was, I think, a gratuitous addition).
53 At this point he said that Scroggie was standing beside him but he could not recall just where the front-end loader was at that point.
54 In answer to a question from me as to whether he knew where Scroggie had firstly removed bales, Maloney said it was from the driver’s side back corner – the high side, and from the top.
55 Moloney then described falling bales and his trying to take evasive action, and said that he was not fast enough.
56 I need not for the moment recite what happened thereafter, save that help was called for and finally an ambulance arrived and Moloney was taken to hospital.
57 I come now to Scroggie’s account of the events leading up to the bales falling from the truck.
58 He said he had used Moloney over the years for carting hay and other dairy herd requirements, in the order of thirty to thirty-five transactions.
59 On this occasion Scroggie too was vague as to what was actually said between them prior to the delivery of the hay, but his intention was to have four loads of hay brought to Illowa and the rest stacked at the Mepunga property. He said he could not say whether a price was agreed, it may have been, but he had no fear of being overcharged by Moloney and if it was not mentioned he would not have pressed him for a price.
60 Scroggie said that what happened on the day, so far as unloading the hay, was not spoken of, and as had happened in the past, he had “assisted” by taking hay off the truck with his front-end loader.
61 Scroggie said that Moloney arrived with a load of hay at mid-afternoon on the 13th January 2005 and was directed by Scroggie to the paddock where the hay was to be unloaded. Moloney, he said, had brought hay to that particular paddock before. As I have said, it seems that Scroggie had opened up the fence before Moloney arrived in order to facilitate the passage of the truck into the paddock.
62 Scroggie said he unloaded the hay on this load with his tractor and placed bales along the western fence of the paddock.
63 Then Moloney left to get another load and Scroggie went about his business on the farm. When Moloney returned he said, which he was expecting, he was in the calf shed with his wife tending to calves. This load, he said, arrived at 6.30 ish.
64 He said he saw Moloney make his way into the paddock where the hay was to be unloaded and he got on his tractor and drove up. He said he parked his tractor somewhere in the vicinity of where the truck was, by which time Moloney was engaged in untying the bindings or straps and he, Scroggie, just went along with him, having light conversation.
65 Scroggie said that Moloney had got around two-thirds of the way along the truck on the passenger side when Scroggie said to him: “Is it time to start now?” and Moloney said, “Yes, go ahead and start now,” or words to that effect. Nothing else was said between them and he had not noticed anything untoward about the load, other than that it was overhanging “because they always do”.
66 Scroggie got on the tractor and went round to the end of the tray and unloaded two of the top bales from the top row at the back of the truck, that is on its nearside and on what was called the ‘down’ side in terms of the slope.
67 Those two bales he placed with those from the previous load alongside the western fence. The distance, he said, between the back of the truck and where he placed the bales was approximately 20-metres.
68 He turned around and came back to the truck and lined up and picked up two bales that were directly opposite on the truck to those that he had just taken – that is, at the back on the top offside of the truck.
69 He said that when he took the first two bales off, Moloney was some distance along the tray to his left rolling up his straps or bindings, as he called them.
70 He said that when he returned for the second load he did not see Moloney as he was on the other side of the truck.
71 He picked up the next two bales as described and carried them to the fence line, then turned around and drove back towards the truck to continue. It was then that he saw that hay had fallen and that there were bales scattered about as shown in the photographs.
72 He saw Moloney unconscious on the ground, checked his breathing and then took steps to have help bought.
73 When asked about where Moloney had been when he last saw him, he said that he was on the nearside of the truck and he presumed that Moloney was there where he last saw him, or even further away, that is, towards the front of the truck.
74 When questioned in his evidence-in-chief about who was in charge of the unloading operation, he said that he always considered himself to be the assistant and subservient to Moloney who was the professional in the game they were dealing with.
75 Moloney, of course, maintained that once he had the truck and the hay on the property, the unloading of the bales was entirely the responsibility of Scroggie.
76 There are a number of issues with which I can deal at this point.
77 The first relates to Moloney’s insistence that the last load of hay in which the incident occurred was in fact the only load he had delivered that day. He was adamant about this. When questioned about the existence of the bales of hay along the western perimeter of the paddock and their having come from an earlier load, he was still adamant that they must have been there beforehand.
78 As the photographs show, there is indeed a quantity of bales stacked against the fence, certainly well in excess of the four bales that Scroggie had removed from the truck before the incident. Unfortunately, no one counted the bales but Ms Dennis said that they certainly resemble those which were on the truck and on the ground when she arrived on the 14th January to investigate and take the photographs.
79 Scroggie’s wife, Mrs Kathleen Joy Scroggie, corroborated him in his evidence that two loads had been delivered that day and that her husband had unloaded the first load and was waiting for Moloney to return with a second load.
80 In the course of cross-examination about the issue of whether there were one or two loads delivered that day, and the placement of bails on the western fence line, Moloney said that the bales unloaded by Scroggie “were just put adjacent to the truck”.
81 Moloney continued “… he told me he was going to stack them up later”. Asked when Scroggie told him that, Moloney said, “When I undone all the straps and said ‘you can start now’”.
82 It was never put to Scroggie in cross-examination that this conversation took place.
83 It is sufficient for me to say that I am not satisfied that this conversation took place. I think it likely that it is a piece of reconstruction on Moloney’s part.
84 In my opinion, Scroggie’s account and that of his wife is to be preferred to that of Moloney. In a sense it probably does not matter much, other than as to the credit of the witnesses. Scroggie swore that the bales to be seen in the photographs on the fence line were from the first load as delivered earlier in the afternoon, and he said that there had not been any bales there prior to that delivery. I am sure that Moloney is convinced in his own mind of his account, but I think he is mistaken. Indeed, there may be good reason for his being mistaken, given the injuries he sustained as a result of the incident.
85 Another allegation made by Moloney was that the tynes on the forklift attached to Scroggie’s tractor were not in a proper position, by 4-inches or so, he said, and in some unexplained way that was implied to be causative of the bales falling off the truck.
86 A photograph was produced of Scroggie’s tractor with the forklift attachment on it, which he said was in the same condition when the photograph was taken some years after the incident as it was then.
87 Mr Simpson sought to use that photograph to demonstrate the truth of Moloney’s assertion. A very close examination of the photograph shows that it is deceptive in appearance, the base of the bar to which the tynes are attached resting on a slight hump in the ground.
88 For myself I do not accept Moloney’s assertion that there was such a discrepancy in the plane in which the tynes were attached or that there is anything in the proposition that some sort of defect in that piece of equipment had contributed to the incident.
89 The next issue of credit that concerns the two men relates to Moloney’s assertion that he was directed by Scroggie to park in the manner in which he did, namely across the slope in the ground, thus presenting a “high side and a low side” of the load.
90 In my opinion this assertion is not made out. It was, as I have said, denied by Scroggie, and given that Moloney, in my view, was in error as to how many loads he had delivered that day, I think that there is probably a fair degree of reconstruction of the events in his mind. In any event, I should have thought that if he had a concern about the placement of the truck, he would have said so.
91 I pause to say that I watched both witnesses very carefully in the witness box and I am sure that they are both honest men. However, recollection of events, particularly after the trauma that was suffered by Moloney can, it is common understanding, effect recollections of such things. This allegation is not proven to my satisfaction.
92 Another issue with which I can deal quite shortly was the assertion pleaded in the particulars of negligence that Scroggie was unduly hasty and was rushing in the unloading of the hay.
93 Moloney gave as his reason for making this allegation serially:
“The rate he was working to unload things”; “I thought he was trying to get them (the bales) off quick smart”; “anyone that wants to take off two at a time, that’s the reason … I’d say he was in a hurry to get knocked off.”
94 In cross-examination, Moloney repeated that he came to the conclusion of undue haste because Scroggie took off the upper bales two at a time.
95 I am unclear as to just when Moloney saw this. It was presumably when Scroggie took off the first two bales from the nearside near where Moloney was winding up his straps.
96 The Scroggies deny that they were in any hurry to have the hay unloaded.
97 There is, in my opinion, no evidence that Scroggie was in a hurry to get the job done. Removal of bales, two at a time in the configuration I have described, is apparently a standard practice.
98 Moloney’s conclusion cannot be justified on the evidence before me.
99 A further matter of significant conflict in the evidence is as to where Scroggie commenced to unload. As I have said, Moloney maintained that Scroggie first took two bales from the rear offside of the truck – the high side – while Scroggie says he took firstly from the opposite or nearside rear of the truck. There is room for significant conjecture here.
100 Moloney claimed, as I have just mentioned, that such bales as were unloaded were put “adjacent to the truck”. If Scroggie had unloaded from the high or offside and placed bales adjacent to the truck then that proximity had, according to the photographs, to be on the nearside of the truck because there are no bales shown on the ground on the offside.
101 If Scroggie had placed two bales adjacent to the truck on the nearside and had then commenced to take two bales from the rear nearside, then he presumably would have, being on the same side as Moloney, seen the bales falling from the truck.
102 Then again, if he had taken, firstly, two bales from the offside and taken them to the fence, and then the other bales fell whilst he was so engaged, he would presumably be wrong in asserting that he in fact removed four bales before the incident occurred.
103 In my view, Scroggie’s evidence in this regard is to be preferred to that of Moloney.
104 The next matter to which I should turn is what was the agreement or arrangement or contract as to the cartage and unloading of the hay?
105 Before proceeding further, I should say something about the pleadings and an amendment sought by Mr Simpson in his opening, to paragraph 4 of the Statement of Claim.
106 In Moloney’s original Statement of Claim, paragraph 3 was pleaded as follows:
“On or about 13 January 2005, the plaintiff was assisting in the unloading of bales of hay from a truck at the premises, when the actions of the defendant caused bales of hay to fall and strike the plaintiff (‘the incident’) and cause him injury.”
107 The Victorian WorkCover Authority’s solicitors in this action pleaded the subject of the above paragraph as follows:
“On or about 13 January 2005 (‘the said date’), the worker suffered personal injuries while assisting the defendant to transport between paddocks and unload large bales of hay from his truck at the premises when several bales of hay fell off the truck and struck the worker (‘the accident’).”
108 When Mr Simpson sought leave to amend that paragraph 4, Mr Batten said he did not consent but had nothing else to say on the matter.
109 At this point the case had not been opened to me and I was then unaware of the potential significance of the amendment.
110 The effect of the amendment, leave for which I granted, was to have paragraph 4 read as follows:
“On or about 13 January 2005 (‘the said date’) the worker suffered personal injuries while the defendant unloaded large bales of hay from the worker’s truck at the premises.”
111 The removal of the word “assisting” potentially put a different context on the Victorian WorkCover Authority’s case as opposed to that pleaded in Moloney’s Statement of Claim. Perhaps in the end it does not matter and Mr Batten knew he had an answer to an interrogatory which would assist him in any event.
112 In my opinion, it is not appropriate for the Victorian WorkCover Authority to plead the plaintiff’s case, at least as to matters in contention, in this manner. Rejigging the Statement of Claim to accommodate the requirements of s.138 of the Act is one thing. Potentially changing the nature of the action, in my view, is another.
113 As indicated previously, it was Moloney’s case that the agreement or arrangement between he and Scroggie was for Moloney to pick up and cart the hay onto the Scroggies’ paddock. He seemed to say that at that point of time he was “functus officio”. His work was done. Presumably his job ended when he undid the tie-down straps. Thereafter it was all Scroggie’s responsibility to remove the hay from the truck.
114 Support for this clear delineation of roles was said to come, inter alia, from the invoice Moloney gave to Scroggie at the completion of the job some months later, after Moloney had got out of hospital.
115 Because, it was said, that on the invoice pertaining to this job and dated the 15th March 2005 (when the last loads were carted to Scroggie) there was no item of unloading or anything to suggest it, that therefore Moloney was not being paid to unload. Thus unloading was something about which he had no interest or over which he had no control.
116 Mr Batten described this as in effect an ex post facto argument. The document itself does little to assist me in determining this particular issue. It was written and delivered well after the incident.
117 It would seem to me, on all the evidence, that Moloney and Scroggie had a comfortable arrangement, and acted apparently on quite a lot of occasions, whereby they in effect assisted each other in the unloading of the hay.
118 It was in their mutual interest that Scroggie should use his own tractor to unload the hay. From his point of view, although there was no evidence that the question had ever been raised in the past as to what it would cost, if anything, for Moloney to unload the hay, assuming that, as Moloney said he would have had to charge Scroggie if he himself had unloaded the hay, then that was a saving to Scroggie. On the other hand, unless he used Scroggie’s tractor himself, Moloney would have had to have brought his own tractor in some manner from Mepunga to Illowa.
119 I did ask some questions as to whether the tractor could be loaded on the truck as well as hay but it seems clear from what Moloney had said as to the manner in which he got the tractor from Koroit to Mepunga that this is not seen as a practical course.
120 In my opinion, there was, at the time of this incident, no clear delineation of roles or responsibility as to the nature and manner of unloading the bales.
121 Both men gave evidence that Scroggie did not start his operation until he was given the clearance to do so from Moloney, and Moloney said that he thought he was well clear of any danger that might attend the unloading of the bales.
122 His statement in this regard is again, I think, a reconstruction because it assumes that he gave consideration to the potential for the dislodgment of bales in the unloading process.
123 Having observed the witnesses, I would think that it is unlikely that Moloney thought there was any danger of the bales being unloaded, and that this is another, understandable as it may be, reconstruction on his part in terms of ascribing sole responsibility for unloading to Scroggie.
124 In the course of cross-examination, Mr Batten put to Moloney an answer to an interrogatory delivered by Scroggie in the action between those two.
125 Interrogatory 2 of those interrogatories enquired:
“2 Prior to the said date did you or your employer make any, and if so, what agreement to deliver bales of hay to the defendant? Give the usual particulars of the agreement.”
126 The answer in full given and sworn to by Moloney was as follows:
“2 In answer to interrogatory 2, I say: ‘Yes, the agreement was partly oral and partly to be implied. Insofar as it was oral it comprised conversations in or about late January, 2004 (sic) between me for and on behalf of the Employer and the Defendant the substance of which was that the defendant requested that I transport hay bales from his property at Boyles Road, Mepunga West and deliver them to his property at Sheens Road, Illowa. It was a term of the agreement that the Defendant would assist me with the unloading by operating his front-end loader to lift the hay bales from the semitrailer. Insofar as it is to be implied it is implied by operation of law, to give business efficacy to the agreement and by the conduct of the parties.’”
127 When pressed by Mr Batten in cross-examination as to this interrogatory and answer, and confronted with the proposition that his evidence before me as to the arrangement, and his sworn answer to the interrogatory were in conflict, he said that the answer to the interrogatory was false.
128 In my opinion, the answer effectively set out what the situation was so far as their respective roles in unloading the bales of hay. On each of their previous dealings where hay was to be unloaded, Scroggie said that this was the arrangement they had adhered to.
129 Maloney’s answer to the interrogatory is, in my opinion, to be preferred to his evidence in this regard before me. That answer was sworn in his own action against Scroggie. His resiling from that answer, and the manner in which it was done, smacks in this instance of a deliberate attempt to adjust his evidence to suit the plaintiff’s case.
130 The arrangement, as I have called it, suited both of them, but I have no doubt that had Moloney given some other instructions as to the unloading of the hay then Scroggie would have complied.
131 Moloney also attempted to bolster his distancing himself from responsibility in the unloading task by asserting that his prices charged were for hay “landed” on a property. The word “landed” which indeed does appear in several earlier invoices rendered to Scroggie, he said meant delivered onto the property of the client and no more. That is hay on the truck on the property in question.
132 No authority was cited for his interpretation although it was asserted by his counsel.
133 It is not to be supposed that Moloney has an intimate knowledge of shipping or mercantile terminology. “Landed”, as I have understood it, means unloaded onto the land: see, for example, Houlder Brothers & Co v Merchants Marine Insurance Co. (1886) 17 QBD 354, at 355 and 6; see also Melbourne Harbor Trust Commissioners v Colonial Sugar Refining Co Ltd [1926] VLR 140.
134 Mr Batten, without citing authority, submitted that that was the appropriate definition of “landed”.
135 Moloney’s unilateral interpretation of “landed” does not alter the effect of his answer to the interrogatory, or Scroggie’s evidence.
136 It follows from what I have said that I do not accept the plaintiff’s submission that Scroggie was “factually and otherwise in charge and in control of the unloading process”.
137 I should now address the question of causation, that is to say, is there evidence of what caused the bales to fall from the truck, and if so was Scroggie’s negligence a cause of that event?
138 There was no direct evidence in this regard other than perhaps the evidence of Maloney, which does not assist in this quest. He said, as I have mentioned, that he had released the ratchet on all twelve strap winches on the nearside of the truck, and then moved to the offside to unhook the clips of those straps. Then he moved back to the nearside and wound up the straps on the winch.
139 As I have said, Maloney said he wound up seven of those straps and was heading to move the eighth winch. When asked further about this process, he said, having undone the hooks, “that you flick the straps back over the load onto the ground and you wind them up on the winches … .”
140 Now, at the time of his giving that evidence, Maloney was not asked as to whether he “flicked the straps back over the load” from the near or offside of the truck. That is to say, did he pull the straps from the nearside over the top of the bales or did he in effect throw them over from the offside?
141 Ms Dennis’ photographs show, counting from the front of the truck, five straps still in situ over the load. They also show two straps lying on the ground, to the rear of the first five, but each, at least, is only partially wound up. Now whether those straps had been “flicked over” the load from the offside or pulled by Maloney over the load from the nearside, or whether the falling bales bought them over, was not explained, or explored in the evidence.
142 All Maloney could say was that he recollected the bales falling, and trying to take evasive action.
143 It is instructive to again examine Photograph 139 of Ms Dennis’ collection. It is a view of the whole length of the truck. It shows the nearside and the remains of the load still in place. It shows where the bales have fallen from. The very last two bales on the back of the trailer, one on either side, are secured by a separate black strap that was still in place when the photographs were taken. It was from immediately above these and the next along bales that Scroggie had removed the four bales before the accident.
144 Then the photographs show that from that last bail going forward, the next four lower bales – upright on the tray – as loaded, have fallen off. So, too, have the longitudinal loaded bales above them. But the upper tier longitudinal bales, save for the two removed by Scroggie on the offside of the truck, are all in place. Thus, notwithstanding that they are on the upside of the parked truck, they did not shift.
145 No expert evidence was called by either side to address the issue of what may have caused the bales to fall. The nearest to such evidence was that of Ms Dennis, who somewhat surprisingly was not called by the plaintiff, but by the defendant.
146 Ms Dennis, from her observations and measurements said that there were four possible contributing factors to the incident.
147 The first was the parking of the truck across the slope of the paddock. The second was the manner in which the truck had been loaded. The third was the removal of the straps from the load, and the fourth was the use of the tractor to commence removing further bales from the load.
148 As to the last factor, she said her concern was whether or not –
“The tractor, in unloading some of the bales, although they were to the rear of the truck, may have caused other bales on the load to become less stable or to remove some of the support of the bales further along the truck, and therefore destabilise the load.”
149 In the course of argument, Mr Batten referred me to a number of cases touching upon this issue.
150 He referred to Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611, and also to Rosenberg v Percival [2001] 205 CLR 434, at 441.
151 In the course of the majority judgment in Nicol, their Honours referred to some comments of Lord Reid in Stapley v Gypsum Mines Ltd [1953] AC 663, at 681, where His Lordship said as follows:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it. … The question must be determined by applying common sense to the facts of each particular case.”
152 In Rosenberg, Gleeson CJ said, at paragraph 16:
“There is an aspect of such a question which may form an important part of the context in which a trial judge considers the issue of causation. In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed.
Recent judgments in this court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated. This danger may be of particular significance where the alleged breach of duty of care is a failure to warn about the possible risks associated with a course of action, where there were, at the time, strong reasons in favour of pursuing the course of action.”
153 His Honour then referred to the cases of which he spoke in a footnote.
154 To my mind each of those observations is pertinent in regard to the current case.
155 I now set out the allegations of negligence against Scroggie as pleaded in the plaintiff’s Statement of Claim.
156 Paragraph 5 pleads:
“5. The accident was caused as a result of the negligence and/or breach
of statutory duty of the Defendant.
PARTICULARS OF NEGLIGENCE AND BREACH OF STATUTORY DUTY
(a) Redirecting the worker to park his truck across sloping ground at the premises for the purpose of unloading the hay bales after the worker had initially parked up the paddock slope; (b) Failing to properly take into account the slope creating a danger that hay bales would fall off the lower side of the truck tray during the unloading process; (c) Failing to ensure that the worker was standing clear of the truck tray before commencing to unload hay bales from the opposite side of the truck; (d) Failing to keep a proper lookout as to the location of the worker whilst unloading the hay bales from the truck; (e) Using plant and/or equipment that was unsuitable for the purpose of unloading hay bales from the truck; (f) Using a front end loader with bent forks to pick up and unload hay bales in a manner liable or prone to compress and/or push other bales off the opposite side of the truck tray; (g) Using undue haste and rushing the unloading process in all the circumstances; (h) Causing the truck to be unloaded in a manner that destabilised the load and caused hay bales to fall off the lower side of the truck tray towards the worker; (i) Failing to warn the worker of the danger of hay bales being forced off the truck towards the worker as unloading was undertaken;
(j) Exposing the worker to a risk of injury of which the Defendant knew or ought to have known; (k) Failing to adopt a safe system of work to unload the hay bales in all the circumstances; (l) Failing to meet the requirements of Sections 21, 22 and/or 23 of the Occupational Health & Safety Act 1985 and/or the Regulations made pursuant to that Act.”
157 It is of some significance, Mr Batten submitted, that in this Statement of Claim no breach of the provisions of the occupier’s liability provisions of the Wrongs Act 1958 are pleaded, in contrast to Maloney’s original Statement of Claim.
158 The particulars of negligence enumerated in paragraph 5(a), (b), (e), (f), (g), (h) and (l) are, in my opinion, not made out as my reasons thus far show.
159 Further, the balance of the pleaded particulars, save for (l), are either mere allegations not supported by the evidence or can be properly labelled as assertions made through the prism of hindsight.
160 The particular under sub-paragraph (l) really incorporates in any event some of those other particulars.
161 Much of Mr Simpson’s submission in this regard depended very much on my finding that Scroggie was in immediate control of the unloading process. Indeed, in the course of Mr Simpson’s cross-examination of Scroggie, I had the feeling that this was more a prosecution under the Occupational Health & Safety Act rather than dealing with a particular of negligence.
162 Similarly, Mr Batten spent a good deal of time cross-examining Moloney about his employment by Horvat and what might be said to be the obligations of that employer to have, inter alia, risk assessments and other employer obligations complied with.
163 Mr Simpson, in speaking to this particular of negligence, relied on a number of so-called concessions made by Scroggie in his evidence. There were thus questions and answers about the dangers of forklifts, unloading heavy bales of hay, knowing the whereabouts of Moloney when Scroggie started the unloading and the like.
164 Most of that which Mr Simpson submitted were concessions made by Scroggie were predicated upon the proposition that he was the “employer” controlling the unloading operation, or were, in my view, examples of regretful hindsight.
165 I think also that Mr Simpson’s omission to deal in his submissions with the answer to Interrogatory 2 bespeaks a forensic decision rather than an oversight.
166 Mr Batten also spent time in his submissions as to where responsibility lay for compliance with statutory obligations under the Occupational Health & Safety Act. He contended that it was Horvat’s responsibility and that the unloading operation should be viewed as one of an industrial nature and thus requiring Horvat and Moloney to implement any relevant procedures.
167 The fact is that this is a case about two men in a paddock performing the operation of unloading hay from a truck in the same manner as they had done many times before. It seems clear that neither of them had any appreciation of the provisions of the Occupational Health & Safety Act. In carrying out what they were doing, neither of them foresaw, based on experience presumably, that there was a danger in the way and in which the operation was being conducted.
168 As I have already said, there is no evidence sufficient to explain how or why the bales that fell, came to do so.
169 There is no doubt that Moloney sustained severe injuries from which he has made a reasonably good recovery, but is nevertheless left with residual problems into the future. That is most regrettable but that is not what this case is about. I have had the uncomfortable feeling that this has been an instance of the plaintiff attempting to promote a case based upon an injury and then work backwards, almost as if it were an instance of res ipsa liquitur.
170 The views I have expressed and my opinions make it unnecessary for me to recite or review the other evidence and materials submitted. I have re-read all of the material and had regard to the other authorities not cited by me but which are referred to in the submissions of counsel.
171 The action will be dismissed.
172 I will hear argument on the question of costs.
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