Walmsley v Norton Transport Pty Ltd
[2001] TASSC 115
•28 September 2001
[2001] TASSC 115
CITATION: Walmsley v Norton Transport Pty Ltd [2001] TASSC 115
PARTIES: WALMSLEY, Graeme Hamilton
v
NORTON TRANSPORT PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: BDR 114/1997
DELIVERED ON: 28 September 2001
DELIVERED AT: Hobart
HEARING DATES: 24, 25 September 2001
JUDGMENT OF: Underwood J
CATCHWORDS:
Torts - Negligence - Essentials of action for negligence - Standard of care - Particular persons and situations - Motor vehicle cases - Truck driver injured when climbing on truck - Whether employer took proper steps to guard against injury.
Wyong Shire Council v Shirt (1980) 146 CLR 40; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, applied.
Aust Dig Torts [38]
REPRESENTATION:
Counsel:
Plaintiff: M J Brett and D R Fairley
Defendant: P L Jackson
Solicitors:
Plaintiff: Temple-Smith Barclay
Defendant: Griffits & Jackson
Judgment Number: [2001] TASSC 115
Number of Paragraphs: 42
Serial No 115/2001
File No BDR 114/1997
GRAEME HAMILTON WALMSLEY v NORTON TRANSPORT PTY LTD
REASONS FOR JUDGMENT UNDERWOOD J
28 September 2001
The plaintiff is a very experienced truck driver. He started driving trucks in about 1963 when he was 19 years of age. Over the next 30 years, he drove all kinds of trucks doing all kinds of work. According to Mr Tim Norton, a director of his employer, the defendant, the plaintiff was "an excellent operator" and an employee with whom the defendant had a "very, very good relationship". The plaintiff agreed with that description of his relationship with the defendant.
On 18 May 1994, the plaintiff had an accident. He fell off the tie-rail of a trailer. He only fell about four feet to the roadway but according to the particulars of claim, suffered injuries to his back and neck which have disabled him from working. The issue presently for determination is whether the plaintiff's injuries and consequential loss and damage were caused by a breach of the duty of care that the defendant admittedly owed him.
The defendant is a family company which carries on a transport business at Burnie. It did, and still does, employ about eight to ten drivers, one of whom was the plaintiff. The plaintiff started work with the defendant about six or seven years before the accident. Principally, his job was to drive semi-trailers loaded with containers and to drive tip-trucks doing roadwork.
On the morning of 18 May 1994, Mr Tim Norton told the plaintiff to drive a Scania prime mover to Brambles sea cargo depot at River Road, Burnie. There he was to connect up to a trailer and load two empty containers. The containers were identified by numbers. It was the plaintiff's job to drive the empty containers to the Edgell-Bird's Eye factory at Ulverstone where they were to be loaded with bulk or bags of potato mash.
Although the plaintiff had not previously loaded containers at Edgell-Bird's Eye, he had frequently driven a prime mover to Brambles' sea cargo depot and picked up a trailer and containers. The Scania prime mover was owned by the defendant. The trailer and the containers were owned by Brambles.
The weather was wet and windy on 18 May 1994. About 11.30 that morning, the plaintiff drove, as directed, to Brambles sea cargo depot. He drove into the yard and connected the prime mover to a 40 feet long flat tray trailer. He then connected the air hoses and set the twist locks in position. Twist locks are apparently devices that can be set to protrude through the floor of a trailer and onto which the four corners of a container are lowered. Once in position, the twist locks are turned so that they cannot move and the container is thereby secured to the trailer.
The plaintiff then drove to another part of the depot where containers were stored. A fork lift driver employed by Brambles lifted the two containers that the plaintiff had come to collect and lowered them onto the trailer.
It is necessary to describe the containers in a little detail. For present purposes, the two of them were indistinguishable. This action concerns the one loaded on the rear of the trailer.
The floor and ends of the container were made of steel. Each side was enclosed by a curtain. There was no evidence of the type of material out of which the curtains were made, but from the photographs (P1), it appears to have been some kind of heavy duty plastic or canvas. The curtains hung from rollers set in a track which ran along the top of each side of the container. The bottom of the curtains hung free, but could be tightly secured to a tie rail which ran the length of the bottom edge of each side of the container. There were nine straps set equidistant along the curtain, a short distance up from the bottom of it. At the end of each strap was a hook. When the curtain was closed, the hooks were attached to the rail. Tension could be applied to the curtain by pulling down on the straps and then by shutting a clasp attached to each strap, in the same way as a seat belt is tightened and fastened.
Down the leading edges of the curtains, fore and aft, was a strip of aluminium. This was attached to a piece of plywood which was either sewn into the curtain or attached to it on the inside in some fashion. This piece of plywood was wide enough to extend from the leading edge back almost to the first strap. By this means both ends of each curtain were stiffened and finished off with a strip of aluminium. When shut properly the strips of aluminium were pulled into grooves set in either end of the container to make a snug fit.
Finally, there was a catch at either end of the curtains which held the edge of the curtain in the tightly shut position. This catch was fitted into the plywood at each end about a third of the way up from the bottom. The plaintiff said, and I accept, that the catches were in the order of 7 feet, 4 inches above the ground when the container was loaded on a trailer. Some people could reach the catch while standing on the ground and some could not. Mr Norton belongs to the former group, and the plaintiff belongs to the latter.
At the end of the catch there was a small "T" bar. The "T" bar was fitted to a lever which, when shut, fitted in a recess of the catch so that it was flush with the outside of the curtain. To operate the catch it was necessary to lift the lever up out of its recess and move it forward. As this movement occurred, the "T" bar also moved forward and the end of it could be fitted in a specially designed slot cut into the steel edge of the container. To close the catch and secure the curtain shut, the lever had to be pulled back and pushed down into its recess. This movement increased the tension and pulled the leading edge of the curtain into its groove. The amount of tension on the catch could be adjusted. The "T" bar was attached to the catch mechanism by a metal thread. Turning the "T" bar on its thread either increased or decreased its length and thus either increased or decreased the tension when shut.
Mr Tim Norton said, and I accept, that sometimes the tension on the "T" bar was so tight that the catches were difficult to undo. In this event the practice was to use a small metal bar and slip it under the catch and lever it up into the open position. Similarly, the catch could be closed by using the bar to bash it down into the recess. Obviously, those who were unable to reach the catch while standing on the ground were able to do so if they used the bar.
It appears that all prime movers had an open metal box fixed between the outside of the rear of the cabin and the turntable on which the trailer swivelled. These boxes were about four or five feet square and had metal sides. For some reason that no witness could explain, these boxes are called "Hungry Boards". They are used to hold ropes, chains and other similar gear, including a metal bar or lever that was used to turn the winches from which straps ran over the cargo in the container to stop it shifting in transit. These were the bars that Mr Norton said were used to force open or shut locks on the curtains if they were difficult to open or close by hand.
It was common ground at trial that it was the driver's responsibility to ensure that his load was secure. The plaintiff said, and I accept, that after the containers were loaded onto the trailer on the morning of 18 May 1994, he drove to another part of the yard and got out of the prime mover. He then locked the twist locks into position and walked around the trailer checking the straps and catches which, he said, "is a common occurrence every time we put containers on".
The plaintiff said, and I accept, that he ran his hand along the straps and looked up at the locks. The curtains on both trailers were shut and all the straps were tight. The locks appeared to the plaintiff to be closed properly. The plaintiff said that had a strap been loose or a curtain edge not drawn into its groove and the lock closed, he would not have driven off.
Upon completion of his inspection, the plaintiff set off for Ulverstone. When he reached Chasm Creek, some six kilometres from Brambles' depot, the plaintiff noticed that the forward edge of the driver's side curtain on the rear container was loose and flapping. He also noticed that curtain on the other side was "ballooning out". The plaintiff said that the catch on the forward leading edge of the driver's side curtain had come undone and the curtain had pulled back about four to six feet and was flapping. He considered the flapping curtain to be a danger to other traffic on the road and pulled up.
I accept the plaintiff's evidence that the catch had come undone and that the curtain was flapping. I do not accept his evidence that the curtain had drawn back as much as six feet as the bottom straps would have prevented this happening. However, I do accept that some part of the leading edge of the curtain had come out of its groove some distance and was flapping, and further, that this had caused the curtain on the other side to "balloon out".
There was evidence which I accept, that if the screw on the "T" bar attached to the curtain catch has been loosened too much, the catch may appear, from visual inspection, to be shut, but wind and movement might jiggle it open. Whether this happened to the plaintiff or whether the catch was open when he left and this had escaped his inspection, I am unable to determine. However, I do find that by the time the plaintiff had driven six kilometres from Brambles' depot, the catch was open.
The plaintiff decided to try and fix the problem himself. He said that first he climbed into the container by pulling himself up over the edge of the trailer. He said that he then pulled the curtain closed along its top track leaving only a gap big enough for him to squeeze through. He said that he then "stood out" and put his right foot on the trailer's tie-rail. With his right hand he seized the closed lock on the curtain of the forward container and with his left hand, he tried to pull the curtain shut and lock it in position. To assist this manoeuvre, he also used his left knee to try and urge the curtain closed. The tie-rail was wet and the plaintiff's foot slipped off it. He was left hanging in the air. The plaintiff managed to get his left foot up onto the tie-rail, but then could not "hold any longer [so he] let go and hurled [himself] away from the container and … come down on the ground" [sic].
I have some reservations about the detail of that account.
(a)In a statement made to loss assessor six months after the accident, the plaintiff said:
"I pulled off the road at Chasm Creek and I climbed up on the side of the tie-rail of the trailer and I held onto the rear latch of the front container and I was attempting to close the unsecured flapping curtain utilising my left arm and left knee in a levering action. It was raining fairly heavily and blowing quite strongly and as I tried to close the curtain on the container both my feet slipped off the tie-rail of the trailer and I was left hanging by my right arm holding onto the catch of the closed curtain on the front container. I was trying to pull myself back up by putting my left leg back on to the tie-rail and then I had to let go as I couldn't hold my weight any longer and I fell about four feet landing in a squatting position."
(b)In answer to an interrogatory the plaintiff said:
"I pulled myself up onto the side of the trailer with my arms and I put my feet on the spare tyre carrier which is in about the middle of the trailer. I then pulled myself up with my arms and put my feet on the side of the tie-rails which are just below the edge of the trailer. I held onto the latch of the front container with my right hand and pulled the curtain of the rear container shut with my left hand and by pushing with my left knee. I then slipped, my feet slipping from the tie-rail. I hung on with my right hand to the latch of the forward container and tried to pull myself up. I was unable to do so and fell to the ground."
(c)It would be extremely difficult to get into the container while the bottom straps were all tightly secured.
I do not accept the plaintiff's account that he got into the container, but I generally accept that he climbed onto the trailer's tie-rail and tried to close the curtain and shut the lock as he described in his evidence.
The plaintiff said that on falling to the roadway he immediately felt pain, but got up and pulled the front strap out and tied it to the tie-rail of the trailer. It is a little difficult to see what that achieved as that strap was already secured to the tie-rail of the container which, according to the photographs, was only about six inches above the tie-rail of the trailer. At all events, the plaintiff then slowly drove to his home which was only a few kilometres away. There he got a ladder and climbed up to reach the catch. He was able to shut the curtain, secure the bottom straps and lock the catch into position. The plaintiff then continued his journey to Edgell-Bird's Eye at Ulverstone. Interestingly, the plaintiff did not suggest that the catch was loose or that he had to increase the tension on the "T" bar to ensure that the catch remained shut.
The plaintiff's case as pleaded and as argued, was simply that the defendant was in breach of its duty of care in that it ought to have foreseen the risk of injury and foreseen that the catch might have come undone, or - presumably - that a driver might set off without noticing that a catch was not properly shut, and ought to have provided a ladder so that the lock could be accessed without the need to climb onto the slippery trailer tie-rail. No other breach of duty of care was pleaded or argued.
When considering the plaintiff's case it must be remembered that the defendant only owned the prime mover. The trailer and the containers were owned by Brambles so, as counsel for the plaintiff conceded, the breach of duty relied upon was a failure to equip the prime mover with a ladder.
In cross-examination the plaintiff conceded that in his 30 years' driving experience, he had never seen a prime mover carrying a ladder. He also conceded that in all those years it never crossed his mind that he might need a ladder while out on the road.
The burden of the evidence was that at the depots a driver climbed onto a fork lift to reach the catches if he could not reach them from the ground. The plaintiff did say that on one occasion he had not been able to use a fork lift and undid the catches by standing on the "Hungry Board" and then stepping onto the tie-rail and then reaching around the edge of the container.
The plaintiff called a retired driver, Mr Barnard, as a witness. He used to drive for the defendant until he retired in 1995. He described an occasion when he was driving a container on a trailer and the catch came undone. He said that because there was only one container on the back and because it was located in the centre of the trailer, there was plenty of room for him to climb up on the trailer and do up the catch. However, there was no suggestion that the defendant was at any time made aware of this incident and it is impossible from Mr Barnard's evidence to conclude whether this accident happened before or after the plaintiff's accident.
Mr Norton said, and I accept, that prior to the plaintiff's accident he had never heard of container curtains coming undone during transit. He said that they are either done up or they are not done up. I also accept Mr Norton's evidence to the effect that prior to the accident he could not think of any reason why a driver would need to get access to curtain catches while a container was in transit. Like the plaintiff, he had never seen a prime mover carrying a ladder.
The plaintiff adduced evidence from a Mr Dohrmann, an engineer from Melbourne, who specialises in occupational health and safety. Mr Dohrmann has had considerable professional experience in his speciality as it applies to the transport industry. He gave evidence that if a "T" bar is not correctly tensioned it is possible for the catch to come undone during transit. However, he agreed that as at the date of giving his evidence, he had never heard of this happening other than, of course, from the account given him by the plaintiff.
Mr Dohrmann's opinion, which was not challenged and I accept, was that it is dangerous for a driver to climb up and stand on a trailer tie-rail because it can be slippery, especially when wet, and therefore there is a danger of falling to the roadway.
In his evidence-in-chief, Mr Dohrmann suggested the following possible courses that were open to eliminate, or reduce, the risk of injury in the event of it being necessary for a driver to access a curtain catch whilst on the road:
(a)"Restrain access to that point to occasions when the truck is parked next to some kind of loading dock or platform."
(b)"To provide a ladder of some sort, which could be put against the truck and used to climb up."
(c)"To construct a permanent ladder which hung from the side of the truck and was available when it was needed."
The failure to provide the second suggested course was the only course relied upon by the plaintiff to sustain his cause of action. The cross-examination of Mr Dohrmann established that:
· he was unaware of any design rules or Australian Standards concerning the carriage of ladders on trucks; and
· in the first of two reports that Mr Dohrmann wrote for the purposes of this case, one in February 2000 and one in March 2001, he did not recommend the carrying of a ladder as he suggested in his evidence.
In his re-examination, Mr Dohrmann made it clear that he envisaged that the ladder would be carried on the trailer. He said he had not given any thought to where a ladder could be stored on a prime mover. He thought that it would be less likely that a storage place could be found on a prime mover but not impossible. Mr Norton was asked if it could have been stored on the "Hungry Board". He said that this was impracticable because the trailer might squash it when going over a gutter. He explained, "your trailer is out over your Hungry Board and going in a gutter I think you’d find you’d squash it." There was no evidence to the contrary and I accept Mr Norton's opinion.
For the defendant, it was contended that the risk of injury which became a reality for the plaintiff, was not reasonably foreseeable and for that reason the defendant was not in breach of its duty of care. Alternatively, it was contended that if the risk was reasonably foreseeable, the failure to provide a ladder in the prime mover was not a breach of the duty of care.
The plaintiff's prime move was equipped with a radio. When the catch came undone, the plaintiff could have radioed for assistance. He claimed he did not do this because had he done so, Mr Tim Norton would have told him, "for goodness sake get up and shut the curtain, you’ve got to be in Ulverstone by twelve o’clock". I do not accept that that would have been the case, nor that the plaintiff believed that this would have been the case. Mr Norton said, and I accept, that sometimes drivers radioed in for assistance with respect to such matters as failed lights. He said that had the plaintiff asked for help, a utility would have been sent out and the plaintiff could have stood in the back of that to reach the catch on the curtain. He said, in effect, that the respect that the defendant had for the plaintiff was such that had he said he needed help, it would have been given without question.
Whether the alleged duty of care arises out of an employee/employer relationship or some other circumstance, the definitive statement on the issue of whether there has been a breach of that duty is the oft quoted passage in the judgment of Mason J (as he then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
See also Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 306 - 309.
Applying the principles expressed by the Privy Council in Overseas Tank Ship (UK) Ltd v The Miller Steamship Co Ltd (The Wagon Mound No 2) [1967] AC 617, Mason J held that even though the risk of injury occurring might be remote, provided that risk is neither fanciful nor far fetched, it is a foreseeable risk. In this sense, it seems to me that the risk of injury to the plaintiff was a foreseeable risk. However, of course, that is not the end of the matter. Foreseeability of the risk of injury does not per se establish a breach of the duty of care. It is the response to that risk, or the lack of it, that is usually determinative of that issue. It is in this context that account is taken (inter alia) of the magnitude of the risk and the degree of probability of its occurrence.
There was an extremely low probability of the foreseeable risk becoming a reality. Apart from the evidence of Mr Barnard, neither the plaintiff nor Mr Norton nor Mr Dohrmann had ever heard of an occasion, other than this one, when there had arisen a need to use a ladder to gain access to containers during transit. The existence of such a need, or the possible existence of such a need, did not occur to either the plaintiff or Mr Norton prior to 18 May 1994. According to all the evidence, no one had seen a prime mover that was equipped with a ladder. The activity which gave rise to the risk of injury was not in itself very dangerous and the consequences of negligence not likely to be grave. In this respect, it appears that the plaintiff was extremely unfortunate, for the distance between the tie-rail of the trailer and the ground was only about four feet.
With respect to the response to the risk of injury, the defendant's vehicle was equipped with a radio which the plaintiff could have used to summon assistance and, had he done so, this would have eliminated the risk of injury. Although the provision of a ladder would, I infer, have been a relatively inexpensive response to the risk, there was no evidence to show that a ladder could have been conveniently stored on a prime mover.
The uncertain difficulty and inconvenience of storing a ladder on a prime mover, the low magnitude of the risk, and the low probability of its occurrence were together, such that a reasonable employer situated in the position of the defendant would not have done any more than the defendant did to reduce that risk, viz, provide the plaintiff with a radio in his truck so that he could call for assistance. Accordingly, the plaintiff has failed to establish that it is more probable than not that the defendant was in breach of the duty of care it owed him.
There will be judgment for the defendant.
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