Walker v Monaro Logging Pty Ltd - [2007] NSWSC 750

No judgment structure available for this case.

CITATION: Walker v Monaro Logging Pty Ltd [2007] NSWSC 750

HEARING DATE(S): 5-8, 23 February, 20 April 2007

JUDGMENT DATE :
11 July 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Studdert J

DECISION: Verdict and judgment for the defendant. I order the plaintiff to pay the defendant's costs.

LEGISLATION CITED: Workers Compensation Act 1987
Law Reform (Miscellaneous Provisions) Act 1946
Civil Liability Act 2002

CASES CITED: Stevens v Brodribb Sawmilling Co Pty Ltd (1985-86) 160 CLR 16
Boral Roof Tiles Ltd v O'Brien (unreported, NSWCA, 15 December 1994)
Samsung Electronics Australia Ltd v Macura [2005] NSWCA 386

PARTIES: Michael Walker (Plaintiff)
Monaro Logging Pty Ltd (Defendant)

FILE NUMBER(S): SC 20270/05

COUNSEL: A J Bartley SC/T Meakes (Plaintiff)
J Graves SC (Defendant)

SOLICITORS: Gathercole & Associates (Plaintiff)
Hicksons (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Wednesday 11 July 2007

20270/05 MICHAEL WALKER v MONARO LOGGING PTY LIMITED
JUDGMENT

1 HIS HONOUR: The plaintiff, Michael Walker, seeks damages from the defendant, Monaro Logging Pty Limited, in respect of harm the plaintiff claims to have suffered on 6 August 2002 when a vehicle he was driving in the Bombala State Forest overturned. The plaintiff was not employed by the defendant but by Dale Bros Pty Limited. However, he alleges that the defendant was negligent in the manner of loading logs and that that negligence caused, or materially contributed to, the accident that occurred.

2 The defendant has denied negligence and has alleged contributory negligence. Moreover, the defendant relies upon s 151Z(2) of the Workers Compensation Act 1987.

3 A central issue in this case is what caused the accident. The plaintiff’s case is that the cause was overloading; the defendant’s contention is that the likely cause of the accident was that the plaintiff was driving at a speed that was excessive in the circumstances.

4 Evidence as to liability was given by the plaintiff and by two employees of the defendant company, Mr Neale Simpson and Mr David Nuttall. The plaintiff placed reliance upon the evidence of an engineer, Mr Colin Simpson, and the defendant placed reliance upon the evidence of an engineer, Mr Shane Richardson. I will review the evidence of these witnesses, but before doing so will record some matters that are not contentious.

5 When this accident happened, the plaintiff was forty-six years of age and an experienced driver. He had driven trucks for Iannelli Bros for some twenty-four to twenty-six years before taking up employment with Dale Bros Pty Limited some four weeks prior to the accident which brings him to this Court. The later employer was engaged as a subcontractor by the defendant to cart logs from the Bombala State Forest to various destinations, at Morwell, Canberra and Tumut. The logs carted were of various lengths, ranging from 3.7 metres to 6.1 metres.

6 The vehicle which the plaintiff was employed to drive was a Kenworth prime mover to which two trailers were attached to haul the timber. The unit was described in evidence as a B-double, effectively providing three bays in which to place and carry the logs harvested in the forest. Based at three metre intervals along the sides of the trailers were steel vertical posts, referred to as bolsters. These rose to a height of approximately two metres from the deck of the trailers. The role of the bolsters was to control lateral movement of the logs after they had been loaded. Two of the three bays were located on the rear trailer, referred to as the B trailer. The A trailer was positioned immediately behind the prime mover and the B trailer was attached to the A trailer.

7 The maximum permissible weight of the vehicle combination when fully loaded was 62.5 tonnes.

8 The accident occurred just before or at sunrise on a fine morning. The road along which the timber was carried was a dirt road and the course of carriage took the combination through a right hand bend at the top of a rise and then the road was downhill to and through a left hand bend. There is an issue as to the distance between the two bends. Mr Colin Simpson measured the distance with a tape, and his evidence was that the left hand bend was eighty-four metres from the right hand bend. Mr Richardson used a survey instrument and, with the benefit of the assistance of a second person, measured the distance at approximately 150 metres. The combination negotiated the right hand bend without incident but it overturned going through the left hand bend. The timber that it had been carrying was strewn beside the roadway.

9 The only description as to the way in which the accident happened is to be found in the evidence that the plaintiff gave. Opinions have been given by the experts as to the likely cause of the accident but there was no independent eye witness.

10 This brings me to a review of the evidence of the various witnesses.

The evidence reviewed

11 The plaintiff had had limited experience in hauling 3.7 metre long logs from the Bombala State Forest. There was some inconsistency in his evidence about how often he had done this. At one stage (T 14), the plaintiff said he had driven the truck with 3.7 metre logs once before the morning of his accident but later (at T 49 and T 63) he said that he had transported three prior loads of 3.7 metre lengths.

12 The plaintiff described the loading procedure. This was done by a machine called a forwarder which had jaws that permitted it to load a number of logs on to the combination at the one time. The evidence identified the operator of the forwarder as an employee of the defendant, namely Mr Neale Simpson.

13 The loading took place before daylight. Mr Simpson operated the forwarder whilst in the cabin of that machine and the plaintiff positioned himself at the driver’s side of his vehicle where he was able to observe the reading on a set of scales located within his prime mover. By reference to those scales, he was able to determine the weight of timber placed in each bay as the loading proceeded. There was no corresponding set of scales in the forwarder so it was contemplated that the weight placed on the B-double was to be determined by the set of scales located in the prime mover.

14 The number of logs loaded was not determinative of the weight of the load. Plainly, when 3.7 metre logs were being transported more were required to make the weight than in the case of 6.1 metre logs. However, there were other variables, including the diameter of the logs and the moisture content of the timber. There was evidence, which I accept, that timber would be heavier if harvested from some locations than others. Hence, a trailer loaded to the top of the bolsters with one particular load of timber could vary in weight from the same trailer loaded to the same height on another occasion.

15 The plaintiff said that the load which was placed on his B-double on the morning of his accident was higher than normal. He said there was a pyramid of logs on the top and that there were eight logs “higher over the top”, referring to the bolsters (T 20). The load was approximately half a metre above the bolsters. Nevertheless he strapped the load and proceeded to carry it away from the loading paddock to where the accident happened.

16 The plaintiff described the journey through the bends to where the combination overturned (T 23-24):

“Q. As you were driving along the road was it level, up hill or down hill as you approached the scene of the accident?
A. I came down a hill through a bit of a right hander and then a left hander and I was crawling down the hill with the Jake Brake on- -

Q. Jake Brake?
A. Yeah, engine break and I was still in fourth gear.

Q. Is that - -
A. In the bottom gear box.

Q. Do you talk about a low range and a high range?
A. Yeah, low range, I was still in the bottom low range in fourth gear. And then I'd gone through the right hander and come out of the left hander and then I looked in the mirror to see if the trailers were coming down through the bend, and then I went into fifth gear and the next minute it just seemed that I looked in the right and the right trailer went over and then A trailer went over and the prime moreover went over. It just went - come back, pulled back, like pulled me back, like I stopped.

Q. So first of all you've gone through a right hand bend?
A. Come down through hand bend of a hill, yeah.

Q. And did you look in your mirrors as you went through that bend?
A. Yeah.

Q. Which mirror did you look in?
A. Left hand one. Like when I looked to come down then to the right it was all right. Then when I went out of the left hand one I looked into the left hand mirror to see if the trailers had come out of the corner and then I looked into the right hand mirror and it seemed the back trailer had just bomp, bomp, bomp.

Q. Were you still in the left hand bend when that happened?
A. I just come out of like a bit of a straight.

Q. About how fast were you going when you first observed the B trailer toppling over?
A. It was only down in the low range, so I'd be only doing 40 kilometres an hour.

Q. Right. The move from fourth to fifth gear--
A. Then you'd go up to about 50 as you would when you got up to 50 but you wouldn't have got to 50 because- -

Q. Fourth to fifth is a full gear change?
A. One higher range, up a gear, yeah, up in the top box.

17 The plaintiff said that during the journey he was travelling down the wheel tracks in the middle of the road where the trucks normally run.

18 Although the plaintiff was the person in the position to read what the scales were registering and to give instructions to Mr Simpson as to when to stop loading by means of a radio facility available to him, the plaintiff said that, on this occasion at least, Mr Simpson controlled the loading. The plaintiff was asked these questions and gave these answers in cross examination (T 51):

“Q. And you as a matter of practice when your vehicle was being loaded with the use of the scales told the forwarder when to stop loading, correct?
A. Yes.

“Q. On 6 August 2002 did you use the radio set to communicate with Simmo?
A. Yes.

“Q. Mr Walker, on 6 August 2002 you directed Simmo over the radio to stop loading in turn each of the three bays, didn't you?
A. No.

Q. Okay. You--
A. He--

19 The plaintiff acknowledged that it was his responsibility to secure the load and to see that it was safe. He did use the straps provided and winched the strapping down into position. He said he thought the load looked safe and he said that otherwise he would not have taken it (T 61, T 68 and T 69).

20 In cross examination it was put to him that he was doing seventy-three to ninety-two kilometres per hour through the left hand bend, but this he denied (T 84).

21 It emerged from a reading of the report of Mr Colin Simpson dated 31 July 2006 that the plaintiff told him that he changed from fourth gear to fifth gear upon reaching the top of the incline and that he proceeded down to the left hand bend in fifth gear at an approximate speed of forty kilometres per hour. The plaintiff’s account to Mr Simpson as to the gear in which he proceeded down the hill is different from the evidence he gave in this Court, and, indeed, in this Court he denied that he told Mr Simpson that he changed into fifth gear at the top of the hill (T 83-84).

22 Mr Neale Simpson was an experienced forwarder operator, having done that work since about May 1983 in the Bombala State Forest. The evidence established that he was employed by the defendant from the time of its incorporation in February 2001 but before that incorporation Mr Simpson had been employed by Mr Nuttall as a forwarder operator for fifteen years.

23 Mr Simpson’s evidence was that he remembered the plaintiff’s accident, attending the scene. Earlier that same morning he had loaded the B-double for the plaintiff. His evidence was that the logs were 3.7 metres and he started loading the front bay whilst the plaintiff monitored the scales inside the truck, and according to Mr Simpson, the plaintiff would have been standing on the right hand side of the truck monitoring the scales in that position. He said that he continued to load the front bay until the plaintiff said to him on the radio that the load was “close to weight, or was weight” (T 201). After the first compartment was loaded, the truck was moved forward so that Mr Simpson could start to load the second bay. He said, as to this process (at T 202):

“I continued to load the second bay. Again, once it got near to the top of the pins, Mr Walker told me that that was enough and that we would move on to the third bay.”

24 That communication was over the radio to Mr Simpson, who remained in what he described as a completely closed-in cabin on the forwarder machine.

25 Mr Simpson said they proceeded then to load the second bay on the second trailer, and he said they would have continued to do so until the plaintiff told him that the weight was right (T 203).

26 According to Mr Simpson, the logs were loaded to a point where the logs nearest the bolsters were some six to eight inches below the bolsters. The load was crowned a little bit in the middle (T 204).

27 Having loaded the plaintiff’s trailers, Mr Simpson said that he (Mr Simpson) “would have just backed away” and he said that he had another truck to load.

28 In cross examination Mr Simpson said that although he used the words “would have” in relation to the events that morning, he remembered the loading of the plaintiff’s vehicle quite clearly (T 207). He said he was unaware that the plaintiff had claimed that the logs were loaded much higher than the bolsters. However, he said that he remembered this particular load because it was not as high as the rest of them. He gave this evidence (T 213):

“It was below the pin height. Like the outside logs were below the pin height and it stuck in my mind how low the load was. Generally, they’re really high. This load wasn’t.”

29 Mr Simpson said it was not until December 2005 that he was asked about the accident. When he reached the accident scene he remembered attending to the plaintiff on the left hand side of the truck, which was in the overturned position.

30 Mr David Nuttall identified himself as the general manager of the defendant and he described the operation the defendant was carrying out in the Bombala State Forest. He said that the defendant had ten of its own vehicles transporting logs, seven of those vehicles being B-doubles and the others being single units. His evidence was that Dales had just the one B-double vehicle involved in the transportation and that in the 2002 calendar year it transported for the defendant 63 loads of 3.7 metre logs from the forest. Records also revealed that in the month prior to the plaintiff’s accident, Dales transported fifteen loads of 3.7 metre logs from the forest.

31 According to Mr Nuttall, Dales transported approximately one-eleventh of the logs transported from the forest under the defendant’s contract with Forests New South Wales.

32 Apart from the vehicles used in transportation, Mr Nuttall said that the defendant was operating five harvester machines and five forwarder machines in its operation in the Bombala State Forest. He said that the defendant had some forty-five employees engaged in the work and the annual turnover of the defendant’s operation was in the vicinity of $8-9 million.

33 Mr Nuttall gave some evidence as to the procedure followed in loading timber on to the vehicles used in transportation. The objective was to fully load the vehicles, in the case of the B-doubles, to the permissible weight of 62.5 tonnes. He said, however, that the loading would continue until the truck driver told the forwarder operator that that weight had been reached or up to the point that he considered to be safe. Mr Nuttall’s evidence as to this was as follows (T 180-181):

“Q. The loading of each of the trucks would continue until the truck driver told the forwarder that the 62 and a half tons had been reached?
A. Either that or he thought the load was unsafe, yes.

HIS HONOUR

BARTLEY

Q. What about the forwarder, did he have no role to play in deciding whether it was safe?
A. He had a role to play but the driver has got the responsibilities, if he doesn't like the way a log is positioned the drivers can ask the forwarder driver to turn the log around or place it here or put it there, whatever.

Q. Yes. But you would not have accepted it, would you, from a driver to say to the forwarder when there was only 40 tons on ‘stop there’?
A. Yes, we would.

Q. You would?
A. He's in control of the truck. If he tells us to stop loading the truck we stop loading.

34 Mr Nuttall did not see the way the vehicle that overturned had been loaded. His evidence was that if logs were stacked so that there were six or eight of them above the top of the bolsters, they might still be loaded safely depending upon the size of the logs.

35 Mr Nuttall was asked about the circumstances in which a B-double would not be loaded to 62.5 tonnes when carrying 3.7 metre logs. I refer to his evidence at (T 172-173):

“Q. Let's take the B double that Mr Walker drove, what would be the hypothetical circumstances on any particular occasion when the forwarder may not load 62.5 tons?
A. When the forwarder driver can see that the load would become unsafe.

Q. Can you speak in this court of what that appearance would be in terms of an unsafe load, how would such a load appear to the forwarder: I am not putting anymore on?
A. If it appeared that the log was going to fall off and endanger the driver or anyone.

Q. In terms of appearance broadly speaking then, what is the difference by way of description on the one hand a load to a forwarder would be a safe load and a load that would be unsafe, in terms of the top of the bolsters, I am talking the 3.7 metre length logs on the B double?
A. A forwarder driver cannot load with the last log on top of the bolster, which is the pin sticking up. You cannot have more than the circumference of the log higher than the pin. Because of the strapping of the load, the load has to be loaded in a round thing (indicating), so when the strap goes over it touches every load on the log.

Q. The log to which you were referring in your answer, is then, if I understand it, the log at the bolster?
A. At the bolster, that's right.

Q. And then you speak of a shaping of the load?
A. Crowning, that's right.

Q. And that is to get a semi-circular appearance at the top of the load, is that right?
A. Yes.

Q. And the purpose of the load being finished off in that way?

A. So the strapping can touch every log going across the top of the load.

36 He was later asked these questions and gave these answers (T 184-185):

“Q. If, in fact, the logs were stacked so that they were six or eight logs above the top of the bolsters then you would agree that would be dangerous?
A. Not if they are loaded the way we always loaded it, no.

Q. So you would accept as safe going eight logs above the bolsters?
A. Depending on the size of the logs.

Q. If they were 3.7 metre logs would you accept them going eight logs above the top of the bolsters?
A. Sorry, if they were what length?

Q. 3.7 would you accept as safe going eight logs above the top of the bolsters?
A. No, depending on the size of the logs, you know, there's logs this big and there's logs this (indicating).

HIS HONOUR

Q. Have I understood you correctly that you would regard as the safety limit half the - -
A. Circumference--

Q. -- top log being above the level of the bolsters?
A. That's right.

Q. So if you have got a pyramid shape it's safe to have half of one log, the uppermost log, above the height of the bolsters?
A. That's right.

Q. And that's the limit?
A. Yeah, that's the limit there, that's right.

Q. Is that an instruction that would be given to your forwarders?
A. That's right, yes.

37 It emerged in submissions that the parties were not ad idem as to the thrust of the evidence given by Mr Nuttall in the two extracts from his evidence last set out above, and I acceded to the application made by Mr Graves to have Mr Nuttall recalled to deal with the arguable ambiguity arising from a consideration of the evidence cited above.

38 Mr Nuttall made it plain when recalled that when he was referring to half the circumference of the log being above the bolster he was referring to the log immediately beside the bolster, and from there achieving a semicircular appearance at the top of the load. I refer to his evidence at T 256-258:

“A. The log I was referring to when I was asked the question was the log at the top inside of the bolster which all loads are pyramided from--

HIS HONOUR

Q. You mean the top log beside the - immediately beside the bolster?
A. That's the most important log when you are building a load.

Q. You are telling me that that was the log you were addressing in these answers?
A. That's right, which after--

Q. Not the one on the top of the pyramid?
A. No.

Q. Can I take you to the second question and answer on page 185. Just read that to yourself?
A. Right.

Q. Do you see his Honour, by the question, "And that's the limit?", is referring back to an earlier question or questions? Do you agree with that?
A. That's right.

39 When further cross examined (at T 272), Mr Nuttall answered the following questions:

HIS HONOUR

Q. Same height as what?
A. To the same height as what we used to load in 2002. You physically can't get any more wood on the truck completely and they're not weighed.

Q. You physically can't get more wood on the truck than what?
A. Than is safe.

40 I am satisfied, having considered Mr Nuttall’s evidence, that:

(i) it would not be appropriate or safe to place the log closest to the bolster at a height where that entire log was above the top of the bolster. So placed, there would be nothing to keep that log in position before the load was strapped;

41 The photos in evidence, particularly the photos Exhibit 1 and Exhibit 2, assist in considering the evidence which Mr Nuttall gave.

42 This brings me to the expert evidence introduced in this cause. There was no challenge to the expertise of either of the engineers.

43 Mr Colin Simpson furnished two reports. The earlier one was dated 31 July 2006 and the later one bears date 29 January 2007. Mr Simpson attended the accident site before writing the later report.

44 Mr Simpson said that the designed speed for this road was fifty kilometres per hour.

45 When he wrote his first report, Mr Simpson’s conclusion was that the likely cause of the accident was

“an unusually high centre of gravity for the particular load, that unusually high centre of gravity being caused by the retention of the overall 42 tonne load but with logs of approximately 3.7 metres length as against the alternative 6 metre length for which the B-double trailers were initially (at least) configured to be loaded with.”

46 Before coming to that conclusion, Mr Simpson wrote in the body of the report:

“If it is assumed that the ‘average’ base height of the load, i.e. the deck of the skeletal supports for the loads, is 1.4 metres in height, then the centre of gravity of the log load, i.e. half the height of the logs above ground level, is then calculated to be 2.07 metres (1.34 2 + 1.4), i.e. the centre of gravity height of the load is then at least 2.07 metres.

If the same weight of logs is placed on the trailer but the logs are 3.7 metres long instead of 6 metres, then the height of the logs above the trailer bolster or skeletal deck increases from 1.34 metres to 2.18 metres and the centre of gravity height of the load increases from 2.07 meres to 2.49 metres, i.e. an increase of 20%.

The above calculations are independent of log diameters and do not take into account the air space that must exist between the logs. Clearly, as more logs are placed on the trailer then there will be more air gaps and hence for a decrease in log length which, for a given load therefore requires an increase in the number of logs, then the air gaps must also increase in number by the same amount.

very conservative.

In summary, the effect of decreasing the log length from 6 metres to 3.7 metres, whilst retaining the same overall load, is to increase the centre of gravity height of the load through a very significant degree and, even based on a zero air gap assumption, this increase in centre of gravity height is at least 20%.

In the opinion of the writer it is this increase in the centre of gravity height of the load created by the short logs, in conjunction with the retention of the overall loaded weight, that has been of greatest significance as to the causation of the Plaintiff’s accident.”

47 Having attended the scene, Mr Simpson considered the significance of the S-bend configuration. With the right hand bend being followed by the left hand bend, the distance between the apex of the two bends of eighty-four metres gave rise to a pendulum effect impacting upon the load. Mr Simpson wrote, on 29 January 2007:

“With the immediate following of the right hand turn by a left hand turn, this then provides an impetus for a sharp swing of the load to the right as the left hand corner is negotiated, the swing being amplified in a pendulum motion by not only the ‘g’ forces applied (as per normal) in negotiating the left hand bend but also the forces in a spring like manner provided by the chassis and springs of the B-Double combination.

The lean to the right during the negotiation of the left hand bend is, therefore, amplified and with the limit being the reactive spring forces applied by the chassis and suspension system, these forces can thus be (as much as) added to those that would be applied through ‘g’ forces alone during the negotiation of the left hand bend.

This then makes the critical speed for the second of the bends which form the ‘S’ bend being as much as half that which would otherwise be the case (assuming no wheel sliding or skidding occurs, the critical factor being the roll-over only).

Therefore, with a speed of approximately 43 kilometres per hour through the (apparent) 101 metre radius of the left hand bend thus producing a single bend ‘g’ loading of approximately 0.144gs, the incorporation of that speed into an ‘S’ bend can be expected to approximately double the ‘g’ loading (due to the pendulum effect) to about .29‘gs’. This assumes, of course, that no abnormal conditions such as an abnormally high centre of gravity for the load apply.

It would, therefore, appear probable, on this basis alone, that the additional factor involved in the Plaintiff’s accident was an abnormally high centre of gravity which reduced the expected ‘g’ force from that reported, in the report of Mr Richardson, from about 0.35‘gs’ to that which probably existed at about .29‘gs’.

The writer is, therefore, of the view that the ‘S’ bend through which the Plaintiff was driving the vehicle was a significant factor as the cause of the accident, the second significant factor being an unusually high centre of gravity for the load under the conditions described.”

48 Mr Simpson considered the alternative explanation proposed by Mr Richardson that the vehicle was travelling at an excessive speed, but rejected that proposition. In doing so he had regard to the specifications of the prime mover and the gear box configuration and considered the maximum speed in fourth gear was 29.1 kilometres per hour and the maximum speed in gear five low was 36.62 kilometres per hour. He observed that the vehicle, following its rollover, came to a sliding halt over a distance measured at ten metres, and this suggested a speed at the point of impact of 36 kilometres per hour.

49 Mr Richardson reached conclusions contrary to those expressed by Mr Simpson. He furnished reports dated 9 June 2006 and 30 August 2006. He attended the scene of the accident on 26 March 2006, and he prepared a reconstruction diagram with supporting photographs (appearing on p 40 of his earlier report).

50 Mr Richardson expressed these conclusions in his first report:

“Based on the available evidence, the author’s site inspection and calculations performed, it is the author’s considered opinion that:

1. The laden truck critical speed for the first bend is estimated at 90km/h.

2. The laden truck critical speed for the second bend, where the rollover occurred, is estimated at 68km/h.

3. The rear trailer has slid at least 52 metres.

4. The pre-rollover speed of Mr Walker’s truck and trailer combination is estimated at 73km/h to 92km/h based on a trip and roll distance of 52 metres.

5. The speed of Mr Walker’s truck and trailer combination can be estimated at 60km/h to 87km/h based on a gouge distance of 38 metres (assuming that the effective friction factor for the sliding truck and trailer combination is similar to a motorcycle).

6. Based on the roadway geometry and the distance that Mr Walker’s logging truck rolled, the author would estimate the speed of Mr Walker’s truck and trailer combination was most likely greater than 68km/h but less than 81km/h.”

51 Earlier, in the body of the report, Mr Richardson wrote (at p 34):

“Based on the rest position and orientation of Mr Walker’s truck and trailer combination it is the author’s opinion that the rear trailer has rolled onto its side and dragged the other trailer and truck also onto its side. The post collision scene photographs provided indicate gouge marks in the roadway in the second bend, refer to Figure 2. The rest position of the logs also indicate that the trailer has rolled when exiting the second bend. Based on Figure 2 to Figure 17 and the attached Reconstruction Diagram, the author estimates that there are gouge marks indicating the trip of the rear trailer in the roadway at least 7 metres prior to the corner fence post and the rest position of the rear trailer at least 45 metres from the corner fence post to the end of the trailer. It is the author’s opinion that the rear trailer has tripped and rolled at least 52 metres. Height et al reported an empirical method to determine pre-rollover speed using the rollover distance and a rollover friction factor of 0.4 to 0.65. Based on Equation 2 the pre-rollover speed of Mr Walker’s truck and trailer combination is estimated to be in the range of 73km/h to 92km/h…

The post collision scene photographs provided indicate gouge marks in the roadway in the second bend, refer to Figure 2. Based on Figure 2 to Figure 17 and the attached Reconstruction Diagram, the author estimates that the rear trailer was sliding and gouging the roadway for 38 metres. There is no test data for logging trucks gouging and sliding on dirt roadways, however given that effective friction is a dimensionless parameter the author considers that the effective friction factors for a tumbling motor cycle could be representative (Lambourn reported effective friction factors from 0.37 to 0.79). Based on Equation 2 the sliding speed of Mr Walker’s truck and trailer combination is estimated to be in the range of 60km/h to 87km/h.

Based on the roadway geometry and the distance that Mr Walker’s logging ruck rolled the author would estimate the speed of Mr Walker’s truck and trailer combination was most likely greater than 68km/h but less than 81km/h.”

52 Mr Richardson supported his conclusions by reference to two equations set out at pp 34-35 of the report.

53 Mr Richardson joined issue with Mr Simpson’s conclusion that the centre of gravity height of the trailer combination was increased by twenty percent. Mr Richardson wrote as to this:

“With respect to vehicle loading, Mr Colin Simpson presents:

o That the trailers were ‘modified’, however, Mr Colin Simpson does not justify or prove how the trailers were modified.

o Mr Colin Simpson then presents an argument in which he claims that the centre of gravity height of the trailers involved in this collision was increased from 2.07 metres to 2.49 metres, an increase of 20% due to the modification.

§ Mr Colin Simpson presents for a 6 metre length log (unmodified trailers by Mr Colin Simpson’s definition) that the average based height of the load is 1.4 metres in height. Mr Colin Simpson then calculates the centre of gravity height to be 2.07 metres. However, he also presents a calculation of ‘1.34 + 2 + 1.4’ which equates to 4.74 metres.

[The author is at a loss to understand the specific calculations presented by Mr Colin Simpson with respect to the centre of gravity height of the trailers with 6 metre logs.]

§ Mr Colin Simpson presents for a 3.7 metre log length (modified trailers by Mr Colin Simpson’s definition) that the height of the logs above the trailer deck would be increased to 2.18 metres, which would correspond to a centre gravity height of 2.49 metres.

[The author remains at a loss to understand how the longitudinal length of a log would affect a cross sectional area calculation. The author accepts that the length of the logs would affect the longitudinal position of the centre of gravity but finds it difficult to understand how the log length, as presented by Mr Colin Simpson, affects the centre of gravity height.

The author does not accept that the centre of gravity height of the trailer combination driven by Mr Walker was increased by 20% as identified by Mr Colin Simpson.]”

54 Mr Richardson disagreed with Mr Simpson’s measurement as to the distance between the apex of the right hand bend and the apex of the left hand bend. Mr Richardson’s evidence was to the effect that the distance was 150 metres.

55 The above review of their evidence makes it plain that Mr Simpson and Mr Richardson are generally at issue in this case.

56 The competing measurements as to distance indicate that the starting and finishing points over which the experts took their measurements differed. Because of the way in which the measurements were taken by Mr Richardson, I think his measurement is likely to have been the more accurate, but I am unable to resolve the distance issue precisely, because of the difficulty of determining the correct apex points. Who correctly determined point A and point B (the apex points)?

57 Ultimately I do not consider the determination of the distance to be decisive of the issue of liability even though the “S” bend was of significance in the manner perceived by Mr Simpson ([47] above). I find that the distance from one apex to the other was no less than that measured by Mr Simpson, 84 metres, and no greater than 150 metres, as stated by Mr Richardson.

58 Put shortly, Mr Simpson sees the height of the load and the configuration of the bends in the road as likely to have been causative of the accident, whilst Mr Richardson considers the likely cause to have been speed.

59 It is, of course, for the plaintiff to prove that the height to which the logs were stacked was causative of his accident. Unless the plaintiff proves this, as Mr Bartley properly acknowledged, the plaintiff must fail.

60 I propose to deal firstly with the issue of speed.

61 The plaintiff put his speed in the vicinity of 40 kilometres per hour and his evidence before me was that he was still in fourth gear when he proceeded down towards the left hand bend. In assessing the reliability of the plaintiff’s evidence as to his speed, I do not overlook the fact that the plaintiff apparently told Mr Colin Simpson that he changed from fourth gear to fifth gear upon reaching the top of the incline (see [22] above). However, on this issue as to his speed, I did not conclude that the plaintiff was endeavouring to deceive the Court, and whether he was in fourth gear or fifth gear it would not have been possible for him to have approached the speed range opined by Mr Richardson. I referred earlier to the evidence of Mr Simpson about the maximum speed in fourth gear and the maximum speed in gear five low having regard to the specifications of the prime mover and the gearbox configuration (see [48] above). If the plaintiff was travelling in gear five low as he told Mr Simpson, his maximum speed would not have exceeded 36.62 kilometres per hour. If he was still in fourth gear, his maximum speed would not have exceeded 29.1 kilometres per hour.

62 Mr Richardson accepted that there were fixed gear ratios which would have governed the speed of the plaintiff’s vehicle but he did not know what they were for this particular vehicle. He was prepared to accept, however, that if the vehicle was in fourth gear proceeding to fifth gear, it could not have been travelling more than forty-three kilometres per hour. He had not researched what gear the vehicle would necessarily have had to have been in in order to reach a speed of ninety kilometres per hour.

63 The photos in evidence indicate that the logs did not roll very far away from the vehicle after the vehicle overturned. The resting place of the logs that had been loaded does not impress me as being indicative of an accident occurring at high speed.

64 The investigation report prepared by Ms Quillerat was tendered as Exhibit D. Unfortunately the author of the report did not give evidence but I note that in her report, Ms Quillerat recorded that when the truck was raised to the upright position it was “found to sit within the worn driving path”. Earlier, the author of the report made the like observation as to the trailers. These observations invite the inference that the vehicle was proceeding within the worn tyre tracks on the road surface when the vehicle overturned. Ms Quillerat also recorded that “tracks visible from the rear of the vehicle indicate the line and direction of the truck was within the Worn Driving Path”.

65 Elsewhere in the report is a passage to which Mr Graves referred in which Ms Quillerat purported to record something of the plaintiff’s account:

“Remembered descending the hill at ≈ 40-45km/hr using the jake brake and approaching from a direction slightly to the right of the worn driving path to enable him to take the corner. He looked in his left-hand mirror to be sure that the trailers had cleared the corner and began to accelerate on to the straight. He looked in his right-hand mirror and as he did so the truck went over in what he described as ‘slow motion, just like being in a movie’.”

66 Mr Graves invited attention to the assertion that the plaintiff was travelling “slightly to the right of the worn driving path to enable him to take the corner”. I do not treat that, if accurately recording what the plaintiff said, as indicating that he was travelling outside the worn driving path at all. Certainly, the vehicle was not outside the driving path when it was returned to the upright position, if the report is accurate, and, again if the report is accurate, the tracks visible when the investigator attended the scene did not indicate that the truck had proceeded outside the worn driving path.

67 Another factor to be considered in looking at the question of speed is where the vehicle came to rest. According to the investigator, there was an indentation on the road surface where the rear bolster hit the road eight metres past the corner and there were drag marks evident for approximately ten metres to the final location. Mr Simpson regarded these marks as consistent with the plaintiff’s stated speed. He considered that the distance was indicative of a speed of thirty-six kilometres per hour. Mr Richardson interpreted the marks on the roadway differently, as being consistent with the speed he opined. Mr Richardson considered that there were marks present on the road surface which indicated that the plaintiff’s vehicle began to tip, and that it tipped and rolled “at least fifty-two metres” (see Mr Richardson’s report dated 9 June 2006 at p 34). Those marks were influential in Mr Richardson’s conclusion as to the speed at which the vehicle was travelling. The evidence as to the marks is the photograph appearing at p 18 of Mr Richardson’s report, and Mr Richardson wrote that he had been provided with a number of photographs of which, presumably, that particular photograph was one. On the other hand, as earlier observed, Ms Quillerat, who had the advantage not shared by Mr Richardson of attending the scene shortly following the accident, did not detect markings on the roadway indicating that the vehicle travelled outside the “worn driving path” (see [64] above). It appears Ms Quillerat did not link the marks that Mr Richardson saw on the photograph mentioned to the plaintiff’s vehicle. In the circumstances, I do not consider it would be safe to base any conclusion as to the speed of the plaintiff’s vehicle in part upon the presence of those marks in the photograph referred to by Mr Richardson.

68 The marks on the road surface do indicate that the rear bolster first hit the road at a point eight metres past the corner but that that bolster did not come to rest until a point thirty-four metres from the corner, so it travelled twenty-six metres from the point where it first struck the ground. That has to be considered when looking at the question of speed.

69 Ultimately, however, I am persuaded on the balance of probabilities by the evidence given by the plaintiff and by Mr Colin Simpson that the plaintiff was travelling at approximately the speed he asserted in evidence, a speed that was consistent with what he claimed when he was interviewed by Ms Quillerat.

70 I do not find that such a speed by itself accounts for the accident or that it evidences a failure on the plaintiff’s part to exercise due care for his own safety.

71 This brings me to a consideration of the significance, if any, of the height of the load.

72 What was the height of it?

73 According to the plaintiff, the crown of the load was approximately half a metre higher than the bolsters against which the outside logs would have rested. The plaintiff said he had not had a load this high before. Mr Neale Simpson, on the other hand, said that he remembered this load because it was

“not as high as the rest of them. It was below the pin height. Like the outside logs were below the pin height and it stuck in my mind how low the load was. Generally they’re really high. This load wasn’t.” (T 213)

74 Mr Neale Simpson did attend the scene shortly after the accident but he was not asked to remember the height of the load until December 2005 (T 213).

75 Which is the more reliable account as to the height of the load, that of the plaintiff or that of Mr Neale Simpson?

76 I note that Ms Quillerat has recorded in her report dated 7 August 2002 that the driver commented that the load seemed high. That comment has the date alongside it “13.8” which indicates that Ms Quillerat spoke to the plaintiff at that time. (Mr Neale Simpson’s signature appears on p 1 of Ms Quillerat’s report but I do not conclude that he became aware of the plaintiff’s assertion as to the load being high when he signed the report.)

77 I am satisfied that to reach the maximum permissible weight of 62.5 tonnes it was necessary to load logs 3.7 metres in length to a greater height than if one was dealing with logs 6.1 metres in length. Mr Colin Simpson reported that the increase in height meant that the centre of gravity of the load increased by twenty percent at least, and I accept this to be so comparing the maximum load of the longer logs with the shorter ones.

78 It was in the interests of the defendant and of the plaintiff’s employer that the maximum permissible load be carried if this proved to be possible. Mr Nuttall gave evidence that there were frequent deliveries of less than the permissible weight in the case of 3.7 metre logs. He was asked these questions and gave these answers (at T 182-183):

“Q. …Now you frequently deliver less than 62 and a half ton?
A. And we did then.

Q. And you frequently deliver less than 62 and a half tons of 3.7 metre logs?
A. That's right.

Q. The reason for that is that you wanted to limit the height of the load when they are 3.7 metre logs?
A. Yes.

Q. And the reason you want to limit the height is that to get 62 and a half metres of 62 and a half tons of 3.7 metre logs on a truck you have got to load it higher than is safe?
A. No, you can only load till it is safe.

Q. And that's why you often don't cart 62 and a half tons of the 3.7 metre logs, isn't it?
A. That's correct.

Q. Because to get 62 and a half tons of 3.7 metre logs on the truck you would have to load too high for safety, wouldn't you?
A. That's right.

Q. You would never do that, would you?
A. No.

79 When Mr Nuttall was recalled, records were produced by Mr Nuttall recording dates and weights of deliveries from 2 January 2002 to 11 February 2002 (Exhibit J). Mr Nuttall marked those records in red biro, explaining that where the weight was not around 60 tonnes or more the vehicle used in the transport was not a B double (T 274-275). Mr Bartley submitted that a consideration of the records did not support Mr Nuttall’s assertion to the effect that loads carried were frequently underweight. Mr Bartley’s submission appears to be correct when one looks at the red markings Mr Nuttall placed on the exhibit. There was one load of 60 tonnes on 3 January 2002 and one load of 61.20 tonnes on 4 January 2002, and there were other loads of less than 62 tonnes but more than 61 tonnes. Exhibit J does not support the assertion that vehicles frequently travelled light.

80 When cross examined on the records, Mr Nuttall was asked these questions and gave these answers (T 264):

“Q. And what you have done here in the documents that you have marked between the 2nd of January 2002 and 1 May is mark each one that you say was under the gross weight that it was permitted to carry?
A. That's what you asked me for.

Q. Yes, and that is what you have done?
A. Yes.

Q. May I suggest to you that you have not found one that is in the 50 ton range, is that right?
A. That would probably be right there.

Q. And that where you have identified B-doubles as being short of the permitted gross, in many cases they are short of permitted gross by only a few kilos?
A. That's right.

Q. You have not been able to find any, any that support your statement to his Honour on the last occasion when you gave evidence, "Quite a few of our loads are only 55 tons"?
A. They are at the moment, at two thousand - at what we are carting the last year, yes.

Q. We will come to that. Page 181, that is the question that I directed you to before when you said, "We cart those light loads all the time"?
A. Yeah, we are at the moment, yes.

81 There were two delivery dockets produced from State Forests which had been signed by the plaintiff as driver and which related to 3.7 metre length logs:

(a) docket dated 2 August 2002;

(b) docket dated 17 July 2002.

82 It has to be borne in mind that the weight of a load of logs each 3.7 metres long can vary appreciably depending upon the moisture content, but the conclusion I reach is that to achieve the permissible maximum load of logs 3.7 metres in length it is probable that the load would have to be crowned above the height of the bolster.

83 I am not persuaded, having considered the evidence in this case, that vehicles frequently left the forest travelling underweight when carrying logs 3.7 metres in length. Indeed, I am persuaded by the evidence to the contrary.

84 There is no State Forests delivery docket for the load that the plaintiff was carrying when his vehicle overturned; presumably the load did not reach its destination. However, the evidence does not lead me to conclude that the load the plaintiff was carrying was likely to be exceptional by being significantly under the maximum weight permissible.

85 In his evidence, the plaintiff conveyed that it was Mr Neale Simpson who determined the height of the loading on the occasion in question (see [18] above). I do not accept that evidence. The evidence satisfies me that it was for the plaintiff to determine the height of the load. I accept the evidence of Mr Nuttall to that effect, and, of course, it is consistent with the circumstance that it was the plaintiff who had access to the means of determining what weight of timber was in position at any particular time. He was the person who was in a position to see and read the scales. The plaintiff could have told Mr Simpson to remove some of the logs if he thought his vehicle was loaded too high. Nevertheless, I think it more probable than not that the load was crowned to a height above the level of the bolsters on this particular occasion. It was the plaintiff who strapped the load into position, and he was better placed than Mr Simpson to assess the height of the timber. His assertion that the timber was higher than the bolsters is consistent with what Ms Quillerat noted that he told her. If Mr Simpson’s evidence was correct that this load did not reach the level of the bolsters, the vehicle would have been travelling light as it set off from the forest, and I consider this to be unlikely. However, the plaintiff’s evidence establishes that he was able to secure the load into position and it has not been proved that the logs immediately beside the bolsters were placed too high. Indeed, had they been, the bolsters would not have restrained them and there would have been nothing to hold the uppermost logs on top of the load. Precisely how high the crown of the load was above the level of the bolsters I do not determine but, plainly, it was not so high that the plaintiff was unable to strap it to his satisfaction ([19] above).

86 Was the height of the load causative of the accident?

87 There was no evidence of a similar accident having occurred when other loads of 3.7 metre logs were being transported from the forest. The evidence was that approximately one-eleventh of the logs taken from the forest were transported by Dale Brothers. The vehicle used by Dale Brothers differed from the vehicles of the defendant in that the Dales’ B trailer was higher than the Monaro B trailers which were connected with a goose neck to the accompanying A trailers. This would have some bearing upon the stability of the Dales’ unit when loaded to an increased height as compared with the defendant’s trailers.

88 Mr Colin Simpson opined that the increase in the centre of gravity occasioned by the increased height of the load rendered the plaintiff’s vehicle more likely to overturn. Mr Richardson gave evidence to the like effect, particularly bringing into account the bends encountered on the plaintiff’s journey. Mr Richardson’s evidence at T 160-161 was as follows:

“Q. If the logs were normally stacked so they were just below the level of the bolsters at about 3-quarters of the height of the bolsters, but if you went up six or 8 logs to the top of the bolsters that would significantly increase the centre of gravity, wouldn't it?
A. It would raise the centre of gravity, yes.

Q. And make it more likely that a vehicle travelling through a curve of the radius of, left hand curve at 40 or 43 kilometres an hour would become unstable and topple?
A. The difficulty - the point you're making, yes. The difficulty I have with the point that you're making in that regard is that the stability of the vehicle that you're describing is more akin to a vehicle which is a fuel tank that has fuel that can slosh, that can be more dynamic under its conditions. It's like a meat truck that has carcasses that actually swing as it can move around. If the load is restrained and tied down as it's going around this manoeuvre, the dynamic effect that you're requiring to give the low level of lateral acceleration that's being presented is not consistent with what we've seen in vehicles.

89 I consider it more probable than not that the height of the load was a cause of the vehicle overturning but I am unable to determine that it was the only cause. However, assuming for the present that the height of the load was a material cause of the accident and the harm suffered by the plaintiff, was the accident due to negligence on the part of the defendant?

90 The defendant was not the plaintiff’s employer but it is contended that the defendant nevertheless owed to the plaintiff a duty of care and that it breached the duty owed in the circumstances of the accident. The defendant operated pursuant to a contract with State Forests. The evidence I reviewed earlier establishes that the particular operation was an extensive one (see [30]-[32] above). With its role in the timber-getting and timber-carrying operations came responsibilities for the defendant. I am satisfied that there arose, having regard to the nature of its activities, an obligation for the defendant to prescribe and implement a safe system of work in the same way as there arose for the sawmiller in Stevens v Brodribb Sawmilling Co. Pty Limited (1985-86) 160 CLR 16 an obligation towards those engaged in work associated with its activities, even though not its direct employees. In Stevens, Mason J, as he then was, said (at 31):

“The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.”

91 The operations being conducted by the defendant, of course, differed from those considered in Brodribb. Plainly there was a duty on the defendant to provide a safe system of work directed to the coordination of the activities by its employees with those of others working in the operations. The defendant brought to the trailers the timber to be loaded, having selected that timber. It provided the equipment and the operators of its machinery. It was vicariously liable for conduct of the forwarder operator. In the respects identified, the defendant owed a duty of care to the plaintiff.

92 However, Mr Bartley has submitted that the defendant’s duty went further than this and that it extended to controlling the number of logs loaded onto the Dale’s vehicle and the giving of instruction to the plaintiff as to how he should go about the loading and movement of the vehicle provided for him by his employer.

93 Mr Bartley submitted that the defendant owed to the plaintiff a duty that extended to the provision of a system of loading his vehicle to height rather than to weight. Assuming the maximum permissible load of 3.7 metre logs was placed on the Dale’s vehicle, inevitably the load would have to be significantly higher than a load of 62.5 tonnes where the logs loaded were five or six metres long. Increasing the height increased the centre of gravity and the risk of the vehicle overturning. Mr Bartley pointed to cross examination of Mr Richardson at T 160 where Mr Richardson agreed that comparing logs of 3.7 metres with logs of 6 metres, there was a thirty percent difference in the length of the logs. The submission is that the difference required that the height of the load be increased accordingly. Assuming the centre of gravity went up twenty percent for the shorter logs, Mr Bartley submitted that a safe system of work meant reducing the weight carried from 62 to 40 tonnes. He submitted this was particularly necessary where, as with the Dale’s vehicle, the trailer was higher and its operator lacked the experience in log cartage that employees of the defendant had.

94 The defendant denies that it had any such duty in terms of the provision of a system of work for the plaintiff. There was a maximum permissible weight that could be carried and, fully loaded, the maximum permissible weight of the vehicle combination was 62.5 tonnes. When that weight was reached was a matter to be determined by the plaintiff by reference to the weighing device in the vehicle provided by his employer. The plaintiff was in control of the loading procedure to the extent that he determined what logs were put on the vehicle and he was the one who determined how those logs were secured once in place. Mr Nuttall’s evidence was to the effect that provided the outside logs immediately beside the bolsters only rose above the top of the bolsters by half their circumference and providing that these and the inner logs could be secured by strapping coming into contact with the surface of each of the top logs, the load was considered safe. That, I understand, to be the effect of his evidence which I have referred to earlier at some length.

95 Mr Graves submitted that the notion of limiting the payload to approximately fifty percent of that allowable by law was simply guesswork, and I accept the thrust of that submission. No expert evidence has been introduced to base Mr Bartley’s submission, and, as Mr Graves has pointed out, Mr Nuttall was not cross examined as to the commercial and financial practicability of the introduction of such a restricted payload.

96 Mr Bartley submitted that the introduction of a safe system required that with 3.7 metre logs the uppermost log at the apex of the crown ought not to have been permitted to be above the horizontal line drawn from the top of the bolsters across the width of the trailers. I am not persuaded that the evidence establishes that if there was a duty owed by the defendant to the plaintiff as to the manner in which he was to load his employer’s vehicle, the exercise of reasonable care required the placement of such a height restriction. I entertain serious reservations as to whether the duty of care owed by the defendant extended to directing or supervising the plaintiff as to the manner of loading Dale’s vehicle or that it extended to giving the plaintiff instruction about how he should load his employer’s truck or to what height. There is much to be said for the view that such matters were within the province of Dale as the plaintiff’s employer, and that in these respects the case is analogous to Boral Roof Tiles Limited v O’Brien (unreported, NSWCA, 15 December 1994) and to Samsung Electronics Australia Limited v Macura [2005] NSWCA 386. However, assuming that the defendant did owe to the plaintiff a duty extending to the manner in which he loaded his employer’s vehicle, I am not persuaded that the exercise of reasonable care required the imposition of such an arbitrary height restriction as that for which Mr Bartley contends. I summarised the effect of Mr Nuttall’s evidence ([94] above), and I accept that Mr Nuttall’s evidence truthfully expressed his assessment, provided the load did not exceed the permissible weight.

97 Mr Nuttall gave evidence as to the scope of the haulage activities from February 2001 onwards, and his evidence was he had had thirty years experience in the timber industry. Mr Nuttall’s unchallenged evidence was that prior to the plaintiff’s accident there had been no incident involving a Dale’s B-double tipping over on the Moorali Road or elsewhere, and there was no evidence of any accident having occurred in the defendant’s operations. In the circumstances, I am not persuaded on the evidence that in discharging its duty of care to the plaintiff, the defendant was required to restrict the height of the load in the manner suggested. I so conclude even assuming that the defendant owed to the plaintiff a duty which extended to governing the manner in which he loaded and secured his employer’s vehicle.

98 Mr Bartley next submitted that the defendant was obliged to give a warning to the plaintiff in or to the following effect:

“You’ve got 62.5 tonnes on. They’re 3.7s and they’re stacked high to get the weight. Your back trailer is higher than on our trucks so you’re probably top heavy. You ought to crawl out of the forest and take it real easy out on the road. Our drivers are very experienced and you’re a novice.”

99 I do not accept the submission that the defendant owed to the plaintiff any duty to give him a warning as to how he should drive his employer’s vehicle. Instruction in that regard, if it was necessary, was the responsibility of the plaintiff’s employer: see Boral Roof Tiles v O’Brien (supra) and Samsung Electronics Australia v Macura (supra). In any event, whether the plaintiff was travelling in fourth or fifth gear, I am not persuaded that the plaintiff was travelling at a speed that the defendant ought reasonably to have foreseen to be unsafe.

100 For the reasons expressed, I do not find negligence in the defendant to have been proved and therefore there must be a verdict for the defendant.

101 However, I propose to consider the issue of damages in an endeavour to avoid the need for a new trial should an appellate court determine the conclusion I have reached on the issue of liability is erroneous.

102 Before turning to damages, I should address the issue of contributory negligence. Had I found the defendant to have been negligent, I would not have found contributory negligence in the plaintiff. I earlier expressed my findings on the issue of speed. As to the height of the load, the evidence did not establish that he loaded contrary to instruction or that he failed to secure it to his own satisfaction. Indeed, I accept his evidence that he assessed the load as being secure and safe (see [19] above). There was no evidence that the plaintiff perceived that there was a risk that by loading the vehicle to the height to which it was loaded, instability was introduced such as might occasion the vehicle to overturn. For these reasons, had negligence been proved, I would not have found contributory negligence.

Damages

103 Mr Bartley acknowledged that s 151Z(2) of the Workers’ Compensation Act 1987 impacted upon the damages which could otherwise be awarded to this plaintiff. Any such damages would have to be reduced by the amount that the defendant would have been entitled to recover from the plaintiff’s employer as a joint tort feasor pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. Put simply, Mr Bartley acknowledged that if the defendant was entitled in proceedings for contribution to recover fifty percent by way of contribution, then the plaintiff’s damages would have to be reduced by fifty percent. Mr Graves concurred: see the transcript for 20 April 2007 at 297-298.

104 Mr Bartley submitted that in the circumstances of this case any reduction to reflect the negligence of the employer should not exceed twenty-five percent. I record this submission, but it is not appropriate that I express any finding in relation to it on the theoretical basis that I had found some negligence in the defendant.

105 I now turn to the assessment, which I proceed to make for the limited purpose I expressed earlier.

106 The plaintiff was forty-six years of age at the time of this accident, having been born on 2 September 1955. He is presently fifty-one years old. He said that after the vehicle overturned he was fearful. He managed eventually to leave the cabin of the prime mover through the passenger side door. He was attended by others from the defendant company present in the forest and was conveyed by ambulance to Bombala Hospital.

107 There were tendered in this case many, many medical reports, both on behalf of the plaintiff and on behalf of the defendant. No doctor was called to give evidence, although divergent medical views have been expressed. I have considered all the medical reports and I note that there are some expressions of opinion adverse to the plaintiff:

(i) Dr Davies assessed the plaintiff on 10 February 2006 on the defendant’s behalf. He did not consider that there was an underlying anatomical basis for the plaintiff’s inability to work but he did think that the plaintiff had a significant psychological condition;

“I strongly suspect that Mr Walker’s ongoing complaints to a significant extent reflect pre-existing psychological and/or personal disturbance with associated unresolved psychological issues and needs leading to attention seeking behaviours, the adoption of unlikely and fluctuating alleged severe symptoms and deficits and the adoption of the invalid role. Furthermore…one cannot discount the possibility that Mr Walker’s claims, presentation and test performance are also coloured by conscious motivational factors.”

108 Notwithstanding the above assessments, I do not understand it to have been put to the plaintiff that he was manufacturing his complaints. Having regard to the manner in which the evidence was presented in this case, I must make my evaluation of the plaintiff and review the medical evidence with that evaluation in mind.

109 Having had the opportunity of observing the plaintiff closely during the course of the hearing, I have concluded that I should accept his evidence as to his symptoms and perceived disabilities since 6 August 2002. It seems to me, however, that the explanation for his problems is very largely non-organic.

110 The plaintiff said that he remembered that he was cold in the cabin and was bleeding. He was conscious of the fuel tanks on the prime mover and he had heard of accidents in which there were fires. He was fearful that the vehicle might go up in flames. By the time he was in the ambulance on the way to hospital, he said he was scared, cold and shaking. He was in hospital at Bombala Hospital for seven days, although he was not confined to bed nor, indeed, to the hospital building during that period. He said that he had pain in the neck, the shoulders, the back and the legs. He had a lacerated right elbow and he developed double vision.

111 Treatment in hospital was conservative, being mainly bed rest and medication. Approximately one week after the plaintiff’s discharge from hospital, he went to his daughter’s home in Queensland and remained there until March 2003. He then returned to the home of Mrs Patton, where he had been boarding immediately before the accident and to which he returned briefly after his discharge from hospital, before going back to Queensland. The plaintiff has been living at Mrs Patton’s residence continually since March 2003, and there was a Griffiths v Kerkemeyer claim advanced in relation to the services Mrs Patton has provided. That claim I will consider presently.

112 According to the plaintiff, pain has persisted and presently he says he has pain in the low back and in the neck, and that his legs ache. He experiences pins and needles down the right side of the face; the right side of his mouth droops. He has some double vision.

113 The plaintiff has said that his nerves have been bad since the accident, he is forgetful and unable to concentrate. Whilst he has retained his car driver’s licence, he has lost his confidence to drive and rarely does so. He depends on Mrs Patton to drive him. He suffers from headaches and sleeplessness.

114 The plaintiff has not worked since the accident other than for a short period in June 2004 when he tried to do a farm job. He argued there with the manager and he was troubled by back pain.

115 The plaintiff is presently on a disability pension and he potters around Mrs Patton’s home. He attempts to mow the lawn and to do other odd jobs.

116 The plaintiff did have diabetes before the accident and that condition has continued.

117 Mrs Patton was called and her evidence supported the evidence of the plaintiff as to his difficulties since August 2002.

118 According to Mrs Patton, the plaintiff returned to her home from Bombala Hospital, but Mrs Patton said that the plaintiff went to live with his daughter in Maryborough from September 2002 until March 2003 before returning to Mrs Patton’s residence. Her observation of the plaintiff since the accident is that he is forgetful. She instanced that he forgot to turn the bath off and the water flooded into the hallway. On another occasion he put the kettle in the refrigerator. On another occasion he forgot where he was. Mrs Patton said that the plaintiff complains of pain in the neck, the shoulders, the back and down the legs, and Mrs Patton noticed that he gets upset and becomes aggressive. Mrs Patton has found that she has to get up at night to comfort him and massage his neck and shoulders. Mrs Patton said that the plaintiff is on a lot of medication and Mrs Patton sees to it that the plaintiff takes his medication. Prior to the accident Mrs Patton did the plaintiff’s cooking and washing and she has continued to do this. She also drives him to the doctors.

119 I accept Mrs Patton as a truthful witness and I accept that Mrs Patton provides assistance for the plaintiff of the type she described. I do not accept, however, that Mrs Patton spends nearly twenty-four hours per day looking after the plaintiff, as at one point of her evidence Mrs Patton said she did (T 103).

120 The extent of any compensable need for Mrs Patton to provide the services she has provided, having regard to the requirements of s 15 of the Civil Liability Act 2002, is an issue that I will consider presently.

121 I do not propose, having regard to the way the evidence was presented in this case, to review all the medical evidence upon which the plaintiff relies. The early medical reports were provided for the plaintiff employer’s workers’ compensation insurer. On 27 November 2002 the plaintiff was assessed by Ms Anderson, a neuropsychologist, practising in Queensland. Her opinion at that time was that the plaintiff was suffering from acute psychological distress and that he required psychological treatment. Ms Anderson said that the plaintiff presented “with a high level of anxiety”.

122 In December 2002 the plaintiff saw another psychologist, Ms Ivamy-Phillips. The plaintiff presented to her complaining of continually intrusive thoughts, inability to sleep and double vision in the right eye. The anxiety level was high and Ms Ivamy-Phillips thought that the plaintiff was suffering post traumatic stress disorder and needed psychotherapeutic treatment. The same psychologist noted the following month that the plaintiff complained to her that he was doing odd things like putting the butter in the wardrobe and his clothes in the refrigerator. He was also complaining about memory problems. In February 2003 he presented to Dr Fox, another psychologist in Queensland, and at that time was very depressed.

123 Following the plaintiff’s return to New South Wales and to Mrs Patton’s residence, he saw Dr Corr, who noted that the plaintiff was complaining of memory problems and was taking his medication from a Webster pack. He was also complaining of visual disturbances and anxiety and depression. Dr Corr regarded the memory difficulties and the anxiety and depression as the major barriers to his employment.

124 Dr Corr was one of many doctors that the plaintiff has seen in the Bombala Street Surgery in Cooma whilst he has been living at Mrs Patton’s residence. Another doctor who has treated him there has been Dr Tuon. In February 2004 Dr Tuon opined that the plaintiff was suffering from post traumatic stress disorder, and Dr Tahmindjis agreed with that diagnosis in a report of 4 March 2004.

125 In July 2004 Dr Tuon reported that the plaintiff was suffering a lot of back pain, headache and diplopia and was unsuitable for work.

126 In January 2005 the plaintiff was assessed by Dr Benanzio, orthopaedic specialist. Dr Benanzio saw x-rays of the skull and of the cervical spine and he also saw a CT scan of the head. No significant abnormalities were disclosed. To Dr Benanzio the plaintiff complained of discomfort in the neck of an intermittent nature, continuous discomfort in the back, intermittent discomfort in the right shoulder and impairment of sensation on the right side of the body. He also complained of poor memory, a short temper, stuttering and double vision in the right eye.

127 Dr Benanzio did not consider that the plaintiff would improve orthopaedically and opined that his neck and low back problems resulted from strains in those areas. The complaint of impaired sensitivity on the right side of the body he considered was a psychiatric complication.

128 Dr Thomas Clark examined the plaintiff for medico-legal purposes on 4 November 2005. Dr Clark concluded that the plaintiff has signs of post traumatic stress disorder and personality change. He was suffering also from depression, capable of being treated with antidepressants. Dr Clark opined that there was some brain injury but the medical evidence generally does not bear this out, and I do not find that there was any such injury.

129 Dr Tahmindjis furnished a report on 15 July 2006 in which he maintained the diagnosis of post traumatic stress disorder coupled with depression. He considered that the prognosis was guarded but that there may be some improvement in the plaintiff’s mood problems if the pending litigation is concluded “to Mr Walker’s satisfaction” (report of 15 July 2006).

130 The plaintiff was referred to Dr Duke, an ophthalmic surgeon, in relation to his visual problems. Dr Duke saw the plaintiff on 20 November 2006 and the specific complaints about vision which were made were that it was blurred and at times the plaintiff saw double, both when looking into the distance and also for closer vision. Dr Duke examined radiological studies which detected no relevant abnormality so far as the sight problem was concerned. Dr Duke’s opinion was that there was convergence insufficiency which could be constitutional. In any event, from a visual point of view the plaintiff’s work capacity was not impaired and Dr Duke concluded his report of 28 November 2006:

“…having reviewed the findings on ophthalmic examination and the history provided and referring to the 8th Chapter 4th Edition AMA guides as to permanent impairment, there is, in terms of standard of visual acuity, fields of vision and binocularity no loss of sight or visual efficiency in either eye consequent upon the motor vehicle accident.”

131 Dr Duke was not required for cross examination on his report, and in the circumstances I accept his opinion.

132 I do not propose to record further the content of the medical reports which have been tendered in evidence.

133 I find that the plaintiff sustained injuries when the vehicle he was driving overturned and that those injuries included strains to the neck and the low back. I accept that the plaintiff as a consequence of his experience developed post traumatic stress disorder and that he has been suffering from that disorder and depression ever since. The evidence leads me to conclude that his prognosis is guarded. I accept that the plaintiff has experienced the problems he described in his evidence since this accident and that those problems are largely attributable to the harm that he suffered when the vehicle overturned. That harm was in part due to strains as diagnosed by Dr Benanzio, but was principally non organic associated with his post traumatic stress disorder, depression and anxiety.

134 Whilst there may well be some improvement in the plaintiff’s condition in the future, I do not consider it to be probable that any improvement will be significant. I think it unlikely that the plaintiff’s ability to work will return to a significant extent and I consider it likely that the plaintiff’s need for assistance as I find it now to exist will continue at more or less the same level indefinitely.

135 This is not a case in which damages would be measurable by reference to grave physical injuries but, nevertheless, I am satisfied that the accident has had a very significant effect upon the plaintiff’s wellbeing and that it will continue to do so in the future. The plaintiff had a good work history before this accident but, for practical purposes, I consider he has been unable to work since and it seems to me to be unlikely that he will return to employment in the future.

136 For the purposes of s 16 of the Civil Liability Act, I would have measured the severity of the non economic loss as being thirty-five percent of a most extreme case, and hence, but for the impact of s 151Z(2) of the Workers’ Compensation Act, I would have allowed for non economic loss the sum of $149,450.

Past economic loss

137 It is common ground that had the plaintiff continued in his pre injury employment, he would have been earning $780 per week nett in the period since the accident. Mr Bartley submitted that this should be allowed for in an award for past economic loss. Mr Graves submitted that the plaintiff should have been able to do some work after the first twenty-four weeks and that after that lapse of time he should be allowed only eighty percent of the pre-injury earnings up to the present time.

138 Consistently with the finding I earlier expressed, I am satisfied that the plaintiff ought to be regarded for practical purposes as having been unable to work since the date of the accident, and, accordingly, I would have allowed for past economic loss the sum of $192,660.

139 Turning to the future, I consider it unlikely that the plaintiff’s employment position will improve in any meaningful way. The plaintiff is, however, suffering from diabetes, and he has suffered from this condition since 1999. That condition and its complications may have impacted upon the plaintiff’s work capacity in the future whether or not he had this accident. I think it reasonable in the circumstances to introduce a discount rate of twenty percent for the future to allow for the vicissitudes. Accordingly, employing the five percent tables, and with a discount for vicissitudes of twenty percent, I would have awarded for the future $313,435.

Superannuation benefits

140 It is agreed that to provide for lost superannuation benefits an appropriate award was eleven percent of the past economic loss. Hence I would have awarded for past superannuation loss the sum of $21,192.

141 For the future, the parties are again agreed that an appropriate award for superannuation loss was eleven percent of the future economic loss awarded. I would have adopted this approach and allowed $34,478 (in round figures).

The claim for gratuitous services

142 The plaintiff gave evidence that whilst he was in hospital Mrs Patton stayed with him and helped him. Details as to the assistance given whilst he was in hospital are meagre. He said (at T 34) that Mrs Patton helped him with his bathing and she kept him company (T 35). He said his nerves were bad. Then, after the plaintiff left hospital, he went to stay with Mrs Patton briefly before returning to live with his daughter at Maryborough, where, as I recorded earlier, he remained until March the following year. His daughter assisted him in Maryborough by doing his washing and his banking.

143 Following his return to Cooma and the home of Mrs Patton in March 2003, the plaintiff said that Mrs Patton assisted him in his daily routine. Mrs Patton attended to his medication and did his washing. He said that Mrs Patton purchases his Webster packs of medication for him and she takes him to medical appointments. He said that she also drives him for outings. As he put it (at T 44), “May takes me everywhere I go now.”

144 Mrs Patton gave evidence that she went to Bombala Hospital and stayed there the whole time that the plaintiff was in hospital, occupying a chair alongside his bed. She said that she used to give him iced drinks and to help the nurse to bath him. She said she helped to feed him and she washed his clothes.

145 After he returned to live with her, Mrs Patton said (T 101):

“I had to do everything for him. He couldn’t dress himself properly. I had to cook his meals, do everything.”

146 Mrs Patton also gave evidence to the effect that she had to chauffeur him because he was forgetful.

147 Moving forward to the present time, Mrs Patton said that she does the cooking and the washing for him, takes him to the doctors and generally drives him since he has no confidence in driving. She renders assistance with his medication which Mrs Patton said he would not take if she did not give it to him. Mrs Patton also massages his neck, shoulders and back. Mrs Patton said that she was with the plaintiff all the time and at night her sleep was disturbed when she had to be with him to talk to him and to massage him.

148 I accept Mrs Patton as a witness of truth but I do not accept that a compensable need for twenty-four hour per day care exists in this case or anything like it. It is for the plaintiff to prove in relation to the claim for care that there exists, and has existed, a reasonable need for the services provided, that the need arose solely because of the injury suffered and that the services would not have been provided but for the harm suffered: s 15(2) of the Civil Liability Act 2002.

149 I do not consider that the continuing orthopaedic problems identified by Dr Benanzio would render the plaintiff incapable of looking after himself but, of course, their effect is compounded by the persisting post traumatic stress disorder and depression from which the plaintiff suffers. Those problems impact upon the underlying strains and they are also, to an appreciable extent, disabling in themselves.

150 It is difficult to be precise about such matters but I have concluded that the plaintiff proved a need for attendant care services averaging one hour per day, or seven hours per week. I would have allowed for this for the period since March 2003.

151 Mr Bartley submitted that it would be appropriate to use an hourly rate of $26 from the time that the plaintiff was released from hospital. I accept that submission and would have allowed for the past $44,954.

Provision for future attendant care

152 The plaintiff is now fifty-two years of age. In allowing for future care Mr Bartley submitted that it would be appropriate to continue at the weekly rate of $26 per hour until Mrs Patton attains her seventieth birthday and thereafter to provide for commercial assistance at $36 per hour. That seems to me to be an appropriate approach. However, as Mr Bartley in his schedule acknowledged, it is proper that there be a discount factor of twenty percent introduced having regard to the plaintiff’s pre-existing health consideration. Adopting this approach, and again by reference to the five percent tables, I would have allowed for future care services the sum of $145,754.

Medical costs

153 Past treatment costs were agreed at $29,826 (omitting cents). The plaintiff made a claim for future costs at the rate of $25 per week. That claim, like the claim for future care costs, was opposed.

154 I am not satisfied that this claim, relatively modest as it is, was substantiated, but I consider it would have been reasonable to make some modest allowance to provide for medical attendances from time to time to address ongoing symptoms. For this I would have allowed the sum of $7500.

Summary of assessment

155 I summarise the damages I would have awarded in the event that the plaintiff had succeeded on liability as follows:

Allowance for non economic loss $149,450

Economic loss
Allowance for the past 192,660
Allowance for the future 313,435

Provision for care
Past gratuitous care 44,954
Provision for future care 145,754

7,500

156 There would have been a need to make adjustment for workers’ compensation benefits received and for an allowance to be included in general damages for the Fox v Wood component. Past weekly benefits would have required to be offset against the allowance for past economic loss if interest was to be claimed on this head of damages. A schedule of workers’ compensation benefits was not before the Court.

Orders

157 1. Verdict and judgment for the defendant.

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Citations

Walker v Monaro Logging Pty Ltd [2007] NSWSC 750

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Statutory Material Cited

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Samsung Electronics Australia Pty Ltd v Macura [2005] NSWCA 386

CITATION:	Walker v Monaro Logging Pty Ltd [2007] NSWSC 750
HEARING DATE(S):	5-8, 23 February, 20 April 2007
JUDGMENT DATE :	11 July 2007
JURISDICTION:	Common Law Division
JUDGMENT OF:	Studdert J
DECISION:	Verdict and judgment for the defendant. I order the plaintiff to pay the defendant's costs.
LEGISLATION CITED:	Workers Compensation Act 1987 Law Reform (Miscellaneous Provisions) Act 1946 Civil Liability Act 2002
CASES CITED:	Stevens v Brodribb Sawmilling Co Pty Ltd (1985-86) 160 CLR 16 Boral Roof Tiles Ltd v O'Brien (unreported, NSWCA, 15 December 1994) Samsung Electronics Australia Ltd v Macura [2005] NSWCA 386
PARTIES:	Michael Walker (Plaintiff) Monaro Logging Pty Ltd (Defendant)
FILE NUMBER(S):	SC 20270/05
COUNSEL:	A J Bartley SC/T Meakes (Plaintiff) J Graves SC (Defendant)
SOLICITORS:	Gathercole & Associates (Plaintiff) Hicksons (Defendant)