Matton Developments Pty Ltd v CGU Insurance Limited
[2016] QCA 208
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- Unreported Judgment
- Appeal Determined - Special Leave Discontinued (HCA)
- Matton Developments Pty Ltd v CGU Insurance Limited[2016] QCA 208
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Matton Developments Pty Ltd v CGU Insurance Limited[2016] QCA 208
Reported at [2017] 1 Qd R 467
Matton Developments Pty Ltd v CGU Insurance Limited[2016] QCA 208
Reported at [2017] 1 Qd R 467
SUPREME COURT OF QUEENSLAND
CITATION: | Matton Developments Pty Ltd v CGU Insurance Limited [2016] QCA 208 |
PARTIES: | MATTON DEVELOPMENTS PTY LTD |
FILE NO/S: | Appeal No 4741 of 2015 SC No 1704 of 2011 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – [2015] QSC 72 |
DELIVERED ON: | 23 August 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 27 October 2015 |
JUDGES: | Margaret McMurdo P and Fraser and Morrison JJA Separate reasons for judgment of each member of the Court, Margaret McMurdo P and Morrison JA concurring as to the orders made, Fraser JA dissenting |
ORDERS: | 1.The appeal is allowed with costs. 2.The judgment below is set aside. 3.Instead, the respondent is to pay the appellant: (a)$1,397,934 being the agreed quantum for the total loss of the crane; (b)$530,000 being the agreed sum for the loss of revenue for the period 1 February 2009 to 30 November 2012; (c)$326,970 being the agreed sum for loss of revenue for the period 1 December 2012 to 15 April 2015; (d)$378.00 per day being the agreed daily rate for loss of revenue from 15 April 2015 to the date of this order; (e)interest under s 57 Insurance Contracts Act 1984 (Cth) from 1 April 2009 to the date of this order; (f)costs as agreed or assessed on the standard basis. |
CATCHWORDS: | INSURANCE – THE POLICY – PRINCIPLES OF CONSTRUCTION – where the respondent issued a policy of insurance in respect of the appellant’s crane – where in the course of lifting a concrete tilt panel the boom of the crane collapsed and the crane was damaged beyond economical repair – where the respondent refused indemnity under the policy – where there was an “accidental overload clause” in the “Additional Benefits” section of the policy – where the appellant contends that the primary judge erred in construing the word “overloading” in the “accidental overload clause” – where the respondent submits the primary judge’s analysis was correct – whether the definition of “overloading” in the “accidental overload clause” includes the “structural overloading” which caused the damage to the crane INSURANCE – THE POLICY – PRINCIPLES OF CONSTRUCTION – where the respondent issued a policy of insurance in respect of the appellant’s crane – where in the course of lifting a concrete tilt panel the boom of the crane collapsed and the crane was damaged beyond economical repair – where the respondent refused indemnity under the policy – where there was an “accidental overload clause” in the “Additional Benefits” section of the policy – where the appellant contends that the primary judge erred in characterising the facts as a deliberate courting of the risk such as to render the overloading and consequential damage neither unexpected nor unforeseen and thus not accidental – where the respondent submits that the primary judge correctly found that the plaintiff did not prove the boom collapse was unexpected or unforeseen – whether the overloading was “accidental” overloading – whether the damage to the crane was “accidental, sudden and unforeseen” Australia Casualty Co Ltd v Federico (1986) 160 CLR 513; [1986] HCA 32, cited Fenton v Thorley & Co Ltd [1903] AC 443, cited J J Leech & Sons (Vic) Pty Ltd v Underwriting Agencies of Australia Pty Ltd [2000] VSCA 219, considered Matton Developments Pty Ltd v CGU Insurance Limited (No 2) [2015] QSC 72, related Mount Albert City Council v New Zealand Municipalities Co-operative Insurance Co Ltd [1983] NZLR 190, cited S & Y Investments (No 2) Pty Ltd (In Liq) v Commercial Union Assurance Co of Australia Ltd (1986) 44 NTR 14; [1986] NTSC 15, cited Westco Australia Pty Ltd v Manufactures Mutual Insurance Ltd, unreported, Supreme Court of Queensland, 22 May 1984), cited |
COUNSEL: | R Traves QC, with A Messina, for the appellant G A Thompson QC, with K F Holyoak, for the respondent |
SOLICITORS: | Warlow Scott Lawyers for the appellant Barry Nilsson Lawyers for the respondent |
[1] MARGARET McMURDO P: This appeal concerns whether the respondent must indemnify the appellant under an insurance policy for extensive damage to a mobile crane which collapsed whilst carrying a 39 tonne panel on a seven degree slope in clear contravention of the manufacturer’s manual and the Australian Standards.
[2] Fraser JA has helpfully set out the relevant facts, sections of the policy and issues[1] so that my reasons can be shortly stated. I agree with his Honour’s reasons for finding that the primary judge erred in construing the word “overloading” in the accidental overload clause of the policy.[2]
[3] Like Morrison JA I have, however, reached a different conclusion to his Honour and the primary judge as to whether the overloading and the damage were accidental under the policy. For that reason, I would allow the appeal. For that reason I agree with Morrison JA that the appeal should be allowed.
[4] The appellant’s case at trial, which was rejected by the trial judge, was quite different to its case on appeal. The trial judge did not accept the appellant’s pleaded case or contentions, and nor did his Honour accept the testimony of the crane driver, Mr Hitaua, as to how the crane came to be overloaded and damaged. The appellant does not dispute the primary judge’s findings of fact but argues that, on those findings, his Honour should have inferred and concluded that the appellant established that the overloading and resulting damage was accidental under the policy.
[5] Despite the policy’s exclusion clauses 21, 26 and 27,[3] the respondent must indemnify the appellant under the accidental overload clause[4] and the policy’s definition of “insured damage”[5] if the overloading was “accidental...non-deliberate and clearly unintentional” and the resulting damage was “accidental sudden and unforeseen.”[6] In determining those questions, the court must consider all relevant circumstances. The fact that Mr Hitaua’s negligence caused the structural overloading and resulting damage is not determinative. For the appellant to be deprived of the benefit of the accidental overload clause, the overloading and damage must have been expected.[7] Both the overloading and the damage will be accidental if each can be categorised as “an unlooked-for mishap or an untoward event which is not expected or designed”: Fenton v Thorley & Co Ltd.[8] As Cooke J in Mount Albert City Council v NZMC Insurance Co (Somers and Jeffries JJ agreeing) stated:[9]
“... there is a category of cases falling short of a deliberate causing of the damage by the insured where his conduct is nevertheless so hazardous and culpable that the event cannot fairly be called an accident. It can only be a question of fact whether a case falls within this category. The insured’s knowledge of the risk must be important, in that unless the evidence justifies the inference that he deliberately incurred the risk one would be very slow to find that the event was other than an accident. On the other hand it seems to me not decisive that the risk may have been deliberately run or calculated. For instance, if the risk was reasonably seen by the insured as not a high one, the occurrence might still be found to be an accident.
It is not profitable to essay precise rules or semantics in this field. Facts and risks vary too greatly. One expression that has been used in some cases and was used by [the trial judge] here, is “courting” the risk. If that is understood as a term stronger than merely running or incurring, and in the sense rather of inviting or wooing, I respectfully agree that it can be a useful test for the tribunal of fact to apply. So can Lord Macnaghten’s definition [“an unlooked-for mishap or an untoward event which is not expected or designed”]. But in the end ... I doubt whether as a matter of law the Court can go further than to say that those are helpful but not necessarily exhaustive tests...”
[6] It is uncontentious that Mr Hitaua knew the crane must be operated on near level ground and that if it was operating on a slope of more than one degree whilst carrying the 39 tonne load, there was a real risk the crane would fail. For that reason, Mr Hitaua and Mr Sprecak, with whom the appellant contracted for the hire of the crane and driver, used unreinforced concrete rubble to level the area over which the crane was to pass to deliver its load. This was a common method of ground filling in this area of construction.[10] Mr Hitaua spent at least 10 to 15 minutes, perhaps 30 minutes or a bit longer, levelling the ground for this purpose.[11] Whilst Mr Sprecak thought the ground was too high, Mr Hitaua expected the combined weight of the crane and panel to compress the rubble so that he could safely drive the loaded crane across the area. Mr Clark, a director of the appellant and a qualified crane driver familiar with this crane, told Mr Hitaua that the prepared ground was suitable.[12]
[7] The trial judge specifically found:
“●The ramp did not compress as Hitaua had expected.
●Hitaua had 12 seconds of crawling the Crane up the ramp to appreciate that the rubble was not compressing as he expected.
●Hitaua, if he had been looking at the spirit level at any time within the 12 seconds the Crane was crawling up the ramp... would have known that the Crane was not being operated on level ground.”[13]
[8] Later, his Honour noted that Mr Hitaua:
“fully appreciated that the Crane had to be operated on level ground. He knew that if the Crane did not operate on level ground there was a risk of the boom failing. He was warned by Sprecak that the ramp which Hitaua had constructed was too high. Hitaua chose to disregard this advice. Hitaua had a full 12 seconds of crawling the Crane up the ramp...[during which] he must have appreciated two things. First, the rubble was not compressing as he expected and second, from looking at the spirit level, the Crane was not being operated on level ground...Hitaua knew that the Crane could never be operated on a slope and that if it was there was a real risk of the boom collapsing.[14]…Hitaua, by continuing to crawl the Crane up the ramp without ensuring that the rubble was crushing in accordance with his expectations, fails to satisfy the requirement of accident due to recklessness, a gamble or a deliberate courting of the risk of which he was well aware.[15]
The evidence was that the Crane moved very slowly. The Crane was a significant way along the rubble ramp when the boom collapsed. Hitaua must have reached a point where his belief or expectation that the rubble would crush simply could not be sustained. In such circumstances, the [appellant] has failed to establish that the collapse of the boom was either unexpected or unforeseen.”[16]
[9] As the appellant points out, there is tension between the trial judge’s earlier observation that, if Mr Hitaua had been looking at the spirit level as he crawled the crane up the ramp in the 12 second period, he would have known it was not being operated on level ground, and his Honour’s later conclusion that Mr Hitaua must have looked at the spirit level during the 12 second period. His Honour made no clear finding as to whether or not Mr Hitaua looked at the spirit level at that time.
[10] I consider that, whilst giving full weight to the advantage of the trial judge and despite Mr Sprecak’s concern that the ground was too high, Mr Hitaua’s conduct in preparing the ground consistent with industry practice and then driving over it, anticipating it would compress to near level, was not so hazardous and culpable that the subsequent overloading and the resulting damage could not be called an accident. Whilst he deliberately took a risk, he was by no means inviting the disaster which ensued. Mr Hitaua and Mr Clark had no interest other than ensuring, for professional, financial and personal safety reasons, that the crane safely traversed the raised ground to deliver its load. Mr Hitaua was following industry practice in raising the ground, which he expected to level as the crane traversed it; but things did not go according to plan. The compelling inference from the primary facts found by the judge was that by the time Mr Hitaua realised the ground was not compressing as he expected, the overloading and collapse of the crane was imminent and unavoidable. Both the overloading and the damage were uninvited, unlooked for mishaps and untoward events not expected or designed.
[11] For these reasons I have concluded that the structural overloading of the crane was, in terms of the policy, “accidental...non-deliberate and clearly unintentional” and the resulting damage “accidental sudden and unforeseen.” I would draw that conclusion, whether looked at from the perspective of Mr Hitaua and Mr Clark or from that of a reasonable person in their positions. Like Morrison JA I would allow the appeal, set aside the decision of the primary judge and instead give judgment for the appellant.
[12] I propose the following orders:
1.The appeal is allowed with costs.
2.The judgment below is set aside.
3.Instead, the respondent is to pay the appellant:
(a)$1,397,934 being the agreed quantum for the total loss of the crane;
(b)$530,000 being the agreed sum for the loss of revenue for the period 1 February 2009 to 30 November 2012;
(c)$326,970 being the agreed sum for loss of revenue for the period 1 December 2012 to 15 April 2015;
(d)$378.00 per day being the agreed daily rate for loss of revenue from 15 April 2015 to the date of this order;
(e)interest under s 57 Insurance Contracts Act 1984 (Cth) from 1 April 2009 to the date of this order;
(f)costs as agreed or assessed on the standard basis.
[13] FRASER JA: The appellant owned a 100 tonne mobile crane. The respondent issued a policy of insurance in respect of the crane. The appellant contracted with Mr Sprecak of G & M Panel Constructions Pty Ltd for the hire of the crane and a crane operator. Pinjarra Constructions Pty Ltd, a company related to the appellant, supplied the crane operator, Mr Hitaua. On 1 February 2009 the crane was being used to lift a concrete tilt panel, panel 30, weighing about 39 tonnes. Panel 30 was the second last panel required to be placed as part of the construction work for a factory extension. In the course of the lift, the boom of the crane collapsed and the crane was damaged beyond economical repair.
[14] The respondent refused indemnity under the policy. A judge in the Trial Division dismissed the appellant’s claim against the respondent.
[15] Section 1 of the policy is headed “Material Damage Cover”. It commences with a clause headed “Scope of cover”. That clause provides:
“We will cover you for insured damage to a machine which is located and in use in the manner in which it was designed to be used, or in transit by land, sea or air between locations, anywhere within Australia and whether at work, at rest, or being dismantled for the purpose of cleaning or overhauling, in the course of these operations, or in the course of subsequent reassembly, but only after successful initial commissioning.”
[16] The following clauses provide cover for removal of debris, indemnity for interested parties, the basis of settlement of claims for insured damage, and provisions concerning co-insurance and the insurer’s liability where there has been a total loss of a machine. After those clauses there is a heading, “Additional Benefits – Section 1”, under which the policy provides:
“We give the following additional benefits: …”
[17] One of the provisions under that heading is the accidental overload clause:
“Accidental overload
We will pay for insured damage caused by or resulting from accidental overloading which is non-deliberate and clearly unintentional.
The onus rests with you to substantiate any claims relating to accidental overload.”
[18] The expression “insured damage” is defined to mean:
“Insured damageAccidental sudden and unforeseen physical loss of or damage to a machine which occurs during the period of insurance and requires immediate repair or replacement to allow continuation of use.”
[19] An exclusion clause relevantly provides that Section 1 of the policy does not cover:
“21.insured damage occurring while any machine is undergoing a test of any kind or is being used in any manner or for any purpose other than that for which it was designed.
…
26.insured damage if, at the time of an accident, a machine being used as a crane or lifting device was.
…
(b)loaded in excess of the safe working load specified by any relevant statutory authority [sic][17] manufacturer's specification; or
…
(d)not used in compliance with the relevant Australian standard.
27.insured damage to any machine which is or has been operated contrary to the manufacturer’s guidelines”
[20] The only issue in the appeal is whether the primary judge erred in holding that the appellant was not entitled to indemnity under the accidental overload clause. The appellant advanced the following contentions:
(a)The primary judge erred by construing the word “overloading” in the accidental overload clause as not comprehending the “structural overloading” which caused the damage to the crane,
(b) The primary judge erred in finding:
(i) that the overloading was not “accidental” overloading within the meaning of the accidental overload clause, and
(ii) the damage to the crane was not “accidental, sudden and unforeseen”.
Factual Issues
[21] The notice of appeal includes 25 grounds, one of which (ground 4) advances nine challenges to the primary judge’s findings of fact. The appellant abandoned many grounds of appeal, including the challenges in grounds 1-3 to findings of fact by the primary judge that the boom of the crane collapsed when the crane was operating on a ramp at an angle of seven degrees, that the boom collapsed because of a structural overload due to the slope of the ramp in conjunction with carrying panel 30, and the crane was not operating on level ground at the time when the boom of the crane collapsed. Ground 4 advances a challenge to factual findings which are described as being “subsidiary to those referred to in paragraphs 1 to 3”, but the appellant did not abandon grounds 4(a), (b) and (h):
“a)that while Hitaua, for the placement of panel 30, spent somewhere between 10 to 30 minutes (perhaps longer) in constructing a rubble ramp, the learned primary judge failed to find that Maurice Clark also spent about 30 minutes to 1 hour working on the rubble ramp;
b)that Sprecak told Hitaua that the ramp, which he had constructed, was too high, and that this advice was ignored;
…
h)that Hitaua had 12 seconds of crawling the crane up the ramp, to appreciate that the rubble was not compressing, as he expected;
…”
[22] The appellant did not advance any argument in support of those grounds. The respondent argued that each of them involved a challenge to findings of fact made by the primary judge, ground 4(b) and (h) could succeed only if the primary judge’s findings about Hitaua’s credit were displaced, and ground 4(h) also involved a challenge to the primary judge’s acceptance of expert evidence of measurements and observations establishing the location of the crane when the boom collapsed. The respondent’s argument concerning grounds 4(b) and 4(h) was correct. The findings challenged in those grounds were supported by evidence accepted by the primary judge and should be affirmed. Ground 4(a) refers to Clark, a director of the appellant, who was not called to give evidence. That ground does not raise a relevant issue. Consideration of the appeal must proceed upon the basis of the detailed findings of fact by the primary judge.
The facts found by the primary judge
[23] The placement of panel 30 involved some difficulties which had not been present for the other panels. The crane could not be driven directly to the placement position because the final panel to be placed was positioned in front of the gap where panel 30 was to be placed between other erected panels. To enable the crane to move into the necessary position for placing panel 30, Hitaua had to crawl the crane in between the props affixed to one of the existing panels, and to permit that to occur three rather than the usual five props were affixed to that existing panel.
[24] Another problem was that the ground the crane would move over in the course of placing panel 30 had deteriorated and was not level. The crane was operating in a mode which set the length and angle of the boom at 26.4 metres and about 71 degrees respectively. In that operating mode, the maximum allowable lateral inclination of the crane was 0.3 degrees, measured at the pin at the base of the boom. Hitaua understood that in this operating mode it was necessary to operate the crane only on level ground. The primary judge found that operation of the crane on a slope would expose the crane to the risk of failure of structural members and that Hitaua knew that operation of the crane in that operating mode on the slope at more than one degree gradient required separate assessment; Hitaua acknowledged that: “Definitely, it’s got to be zero level.”[18] To remedy this problem Hitaua asked Sprecak to organise the placement of concrete rubble on the ground. At Sprecak’s instruction, Clark placed broken up caster beds, which had no reinforcing. When that work was completed, Sprecak said that the ground “looked nice and flat”. Subsequently, Hitaua himself worked on levelling the rubble for what he estimated was about 10 to 15 minutes and what Sprecak estimated was 30 minutes or a bit longer. When that work was completed Hitaua believed that the ground looked level and was fine. In cross-examination, Sprecak said that he questioned Hitaua about the “ramp” being too high. The primary judge explained that he used the word “ramp” in the context of an agreement by the expert witnesses that, “its use was eschewed. Loose rubble was placed on the ground in front of the crane. The rubble was proud of the surrounding ground surface. The rubble was overfilled deliberately with the intention of it being compressed by the crane”. The primary judge found that it “is clear from the evidence of both Hitaua and Sprecak that even though the rubble was high, they expected the combined weight of the Crane and panel 30 to compress the rubble ramp which had been created by Hitaua.”[19]
[25] A rigger on site, Strong, accepted in cross-examination that Sprecak said to Hitaua that the ramp was too high, to which Hitaua responded with words to the effect:
“When the red light is flashing, do not listen to Gary [Sprecak].”
[26] Sprecak acted as dogman in the lift. Under his direction Hitaua slewed the boom of the crane whilst panel 30 was moved about 90 degrees, and was about 600 to 800 millimetres off the ground. Hitaua then complied with Sprecak’s direction to lower the panel closer to the ground. The primary judge described the subsequent events in the following passage of his reasons:
“[45]It is at this point of the narrative that the parties part company. The three eyewitnesses to the collapse called by the plaintiff, Hitaua, Sprecak and Strong, gave evidence that at the time of the collapse the Crane was being operated on level ground. By reference to a photograph (exhibit 40), Hitaua marked with the letter "B" where he says the front tracks of the Crane were at the time of the collapse of the boom. An eyewitness called by the defendant, Stanley Corbett, identified that the position of the front tracks of the Crane were not in the location marked "B" on exhibit 40 but were in the position as shown in another photograph (exhibit 65). This photograph shows the Crane in its final resting position.
[46]David Hartigan of Field Engineers measured the angle of the Crane's superstructure shortly after the collapse as 7 degrees from front to rear. There is no dispute as to the correctness of Hartigan's measurement. It follows that if the Crane was in the final position as shown in exhibit 65 at the time of the collapse of the boom, then it was being operated well outside the manufacturer's recommended level of 0.3 degrees. In order to determine whether the Crane was being operated on level ground as asserted by the eyewitnesses called by the plaintiff it is necessary to analyse their evidence in some detail.”
[27] The primary judge analysed the evidence and rejected Hitaua’s testimony that when the boom collapsed the crane was being operated on level ground in the position marked "B" on exhibit 40, that the crane came to be in its final position by being accidently driven forward by Hitaua, and that Hitaua was “always” looking at the spirit level as he operated the crane. The primary judge referred to the warning given by Sprecak to Hitaua that the rubble ramp he had constructed was too high and found:
“[60]… Whilst I accept that Hitaua’s expectation (from previous experience) was that the rubble would crush under the combined weight of the Crane and panel 30, the rubble did not in fact crush as expected. This resulted in Hitaua crawling the Crane up the rubble ramp for approximately 12 seconds. Had he been observing the spirit level it must have been obvious to him that the Crane was not being operated on level ground. His evidence that ‘the bubble was level’ (at all times) must be rejected.” (footnote omitted.)
[28] The primary judge accepted expert evidence given in the respondent’s case that the load being carried by the boom up a seven degree slope resulted in the boom being stressed beyond the strength of the material from which it was made. The primary judge made the following findings of fact:
- “Hitaua knew that the Crane had to be operated on level ground.
- Hitaua was aware of his obligations to operate the Crane in accordance with the manufacturer's guidelines.
- He appreciated that if the Crane was operated on a slope it exposed the Crane to a risk that there might be a failure of the boom or other structural members.
- He knew that if the Crane was to be operated at more than 1 degree gradient this required separate assessment.
- Hitaua, for the placement of panel 30, spent somewhere between 10 to 30 minutes (perhaps longer) in constructing a rubble ramp …
- Sprecak told Hitaua that the ramp which he had constructed was too high. This advice was ignored.
- Hitaua, prior to crawling the Crane onto the ramp, expected that the combined weight of the Crane and panel 30 would compress the rubble, so that the Crane would be operating on level to near level ground.
- Hitaua intended to crawl the Crane past the final position of the Crane shown in the photographs (exhibit 12) hard up against panel 31 in order to reach a marked white cross.
- Hitaua crawled the Crane for a period of 12 seconds from the position marked "B" on exhibit 40 to the final position of the Crane depicted in the photographs (exhibit 12).
- The boom was somewhere between a 45 degree or [sic] 90 degree angle when Hitaua was crawling up the ramp.
- Hitaua crawled the Crane between the two props or braces that were supporting panel 31 to the position shown in exhibit 65.
- At the position of the Crane shown in the photographs (exhibit 12 and exhibit 65), Hitaua attempted to slew "a wee bit more" to the right so that he could track forward "a wee bit more" in order to drop panel 30 into place.
- The ramp did not compress as Hitaua had expected.
- Hitaua had 12 seconds of crawling the Crane up the ramp to appreciate that the rubble was not compressing as he expected.
- Hitaua, if he had been looking at the spirit level at any time within the 12 seconds the Crane was crawling up the ramp from the position marked "B" on exhibit 40 to the Crane's final position, would have known that the Crane was not being operated on level ground.
- The boom of the Crane collapsed when the Crane was on the ramp in the position depicted in the photographs (exhibit 12 and exhibit 65).
- The Crane in its final position was on a slope of 7 degrees.
- The boom of the Crane collapsed because of structural overload due to the slope of the ramp in conjunction with the carrying of a 39.2 tonne load.”[20]
Non-compliance with manufacturer’s guidelines and Australian Standards
[29] The primary judge concluded, in summary, that: the operation of the crane on a seven degree slope did not comply with the manufacturer’s guidelines that the recommended ground slope for normal operation was 0.3 degrees; the manufacturer recommended operation of the machine on slopes up to four degrees only with a significantly reduced maximum load of nine tonnes; the guidelines warned of the risk of structural overload if the crane was not operated on level ground; the side load imposed on the boom of the crane was outside the manufacturer’s guideline, it was about 3.4 times the design capacity required by Australian Standards; and it contravened Australian Standards concerning the safe use of mobile cranes.[21]
Did the primary judge err by construing the word “overloading” in the accidental overload clause as not comprehending the “structural overloading” which caused the damage to the crane?
[30] If the definition of “insured damage” is read into the accidental overload clause, the clause reads:
“We will pay for accidental sudden and unforeseen physical loss of or damage to a machine caused by or resulting from accidental overloading which is non-deliberate and clearly unintentional.
The onus rests with you to substantiate any claims relating to accidental overload.”
[31] The words “overloading” and “overload” are not defined in the policy. The primary judge quoted the following dictionary definitions of “overload”:
“•to load to excess; overburden (Macquarie);
•an excessive load (Macquarie);
•an excessive load or burden; too great a load; the condition of being overloaded (Oxford); and
•to load with too great a burden or cargo; to put an excessive load on; overburden; overcharge (Oxford).”[22]
[32] The primary judge found that the word “overload” did not encompass a case where the crane was “overloaded because it was operated on a slope.”[23] The primary judge considered that “overload” connoted the crane being “physically overloaded with an excessive load” or “’loaded up’ to excess; too great a burden or cargo; when the Crane is first loaded.”[24] The primary judge considered that this construction was consistent with the accidental overload clause providing additional cover only where the crane “is located and in use in the manner in which it was designed to be used”; the additional cover permitted indemnity in relation to “an accidental (unintended and unexpected) physical overload of the Crane but it has otherwise been operated in the manner in which it was designed to be used”.[25]
[33] The primary judge considered that this construction better accorded with what the parties would have intended because, whilst the competing constructions advanced by the parties each required the four relevant exclusions to be read down to the extent that a “physical overloading of the Crane” contradicted their application,[26] the appellant’s construction that “overload comprehended an overload occurring when the crane was operated on a slope would result in all of those exclusion clauses having little or no operation at all.” The primary judge’s construction required the exclusions to be read down only to the extent that a “physical overloading” would contradict their application, without which the accidental overload cover would be rendered illusory,[27] whereas a construction of “overloading” that comprehended the structural overloading occurring when the crane operated on a slope would result in the exclusions having little or no operation. The primary judge considered that the parties would not have intended to allow recovery where the crane was overloaded by being operated on a slope in clear contravention of the manufacturer’s guidelines and Australian Standards.
The parties’ arguments
[34] The appellant argued that the decision of the Victorian Court of Appeal in J J Leech & Sons (Vic) Pty Ltd v Underwriting Agencies of Australia Pty Ltd[28] supported the view that “overloading” in the accidental overload clause comprehended the cause of the damage in this case. The primary judge’s construction erroneously construed the additional cover in the accidental overload clause too narrowly, particularly having regard to the omission in it of the expression in the primary cover “use in the manner in which it was designed to be used”. The appellant argued that the exclusion clauses identified by the primary judge should be read down to the extent that they would otherwise exclude accidental, non-deliberate and clearly unintentional “overloading” resulting in “insured damage”. The accidental overload clause added cover where the machine was used in contravention of the manufacturer’s design and relevant Australian Standards so far as they applied to overloading. Whilst the accidental overload clause required the exclusions identified by the primary judge to be read down insofar as they concerned accidental, non-deliberate, and clearly unintentional overloading, the attribution of a meaning to the word “overloading” which comprehended what amounted to overloading only when the crane was operating on a slope left ample scope for the operation of those exclusion clauses. They continued to apply in respect of insured damage occurring otherwise than in consequence of a breach of the Australian Standards or manufacturer’s guidelines and specifications concerning such “overloading”. The appellant argued that the primary judge’s construction in any event negated any application of exclusion 26(b) because the word “loaded” in that exclusion comprehended “first loaded”.
[35] The appellant argued that the following matters supported its construction that “overloading” comprehended “structural overload”. The schedule of the policy (which specified a certain “crawler crane”), and the Australian Standards and manufacturer’s specifications referred to in the policy (which expressly referred to mobile cranes) made it clear that the policy was intended to comprehend damage to a crane which was designed both to lift and to carry loads, whereas the primary judge’s construction confined the accidental overload cover to a static, first lifting of a load. The Australian Standards and manufacturer’s specifications made it clear that the designed load for the mobile crane depended, not merely upon the weight of that which was to be lifted by the crane, but also upon factors such as the length of the boom and the angle of the operating surface. Even if attention were confined to when a crane was “first loaded”, in order to determine whether there was an “overloading” it was necessary to make assumptions about matters including the slope, boom length, luffing angle, and boom radius.
[36] The respondent acknowledged that the words “overloading” and “overload” arguably comprehended the bending moment which produced the stress at the base of the crane’s boom and caused it to collapse in this case, but it argued that the primary judge’s analysis was correct. There was an additional matter supporting the primary judge’s construction. Where a “structural overload” caused by a matter outside the insured’s control (for example, subsidence causing an additional structural load) resulted in accidental sudden and unforeseen damage to an insured crane, the damage would fall within the scope of cover clause. Thus, there was no need to give the accidental overload clause a broad construction to catch such an accident. On the other hand, “insured damage” caused only by loading too great a burden or cargo would fall outside the scope of cover clause (because of the words “use in the manner in which it was designed to be used …”): that would fall within the accidental overload clause, which omits those words.
[37] The respondent argued that “structural overload” was not synonymous with “overloading” in the accidental overload clause. In this case the “load” (the concrete panel) was within the lifting capacity of the crane. The crane was not “overloaded” and the weight of the panel was not the proximate cause of the tensile stress at the base of the crane’s boom. The respondent submitted that J J Leech & Sons (Vic) Pty Ltd v Underwriting Agencies of Australia Pty Ltd supported the view that, whilst the word “overloading” was protean, its natural meaning was “loading the machinery beyond its capacity”. The obvious example intended to be caught by the provision was a case in which the crane operator was mistaken about the weight of the load to be lifted by the crane. It was only “overload” in that sense with which it was necessary to reconcile the exclusions. The construction advocated by the appellant would not harmonise the exclusion clauses with the accidental overload clause. It would produce an unlikely commercial meaning that, regardless of the degree of incline of a slope upon which a crane was operated on or the departures from the manufacturer’s guidelines and Australian Standards leading to a “structural overload” the insurer would be obliged to underwrite the ensuing damage.
Consideration
[38] It was not suggested that the word “overloading” bears a technical or other kind of special meaning which excludes reference to “structural” loads of a kind which resulted from the crane operating on a slope. Any such suggestion would seem difficult to reconcile with the fact that the manufacturer’s guidelines permitted operation of this crane in certain operating modes on a slope (up to four degrees with a maximum load of nine tonnes) and the fact that the word “overload” is used in a relevant Australian Standard[29] in a way which encompasses a ‘load’ added by the operation on a slope: “… the increase in working radius may create an overload and cause the crane to tip over forwards.”
[39] As the primary judge held, the meaning of the policy is to be ascertained by determining what it would convey to a reasonable person in the parties’ position. The text, the surrounding circumstances, the purpose of the policy, and the coverage and object of the transaction should be taken into account where they are relevant. The scope of cover clause insures against damage to a machine – in this case a mobile crane – whilst it is “at work” or “at rest”. The accidental overload clause also applies in both circumstances. That makes it seem unlikely that the question whether or not there is “overloading” is to be answered without reference to the dynamic and structural forces which might be encountered by the crane moving around a work site. This consideration tends to confirm what seems in any case to be the natural meaning of the word “overloading” in the accidental overload clause. That word comprehends the crane carrying a load which would be within the capacity of the crane operating upon a level surface but which overloads the crane when it is operating on a slope. The dictionary definitions do not suggest a narrower meaning. Consistently with the expert evidence in this case, in order to decide whether or not a crane carries an excessive load it is necessary to have regard both to the weight of the object picked up by the crane and the circumstances in which the crane is operating, including whether or not it is operating on level ground and, if not, the angle of the slope upon which it is operating.
[40] In J J Leech & Sons (Vic) Pty Ltd a policy insured against unforeseen and sudden physical damage from any cause which was not specifically excluded. Liability for damage due to “overloading or incorrect loading of Machinery” was specifically excluded. The insured contractor and crane operator provided a crane to assist in the felling of a large tree by taking the weight of the tree, via a sling, whilst the tree was being cut at its base. The tree became free at its base and began to swing, causing the boom to buckle and distort. The accepted expert evidence was that the crane could withstand the static load of the tree if lifted on a vertical plane, but could not accommodate both the weight of the tree and the dynamic loads added by its movement. Using the manufacturer’s “guide chart”, the load imposed upon the crane in that operation exceeded the safe working load for the crane, rigged as it was for that operation. The argument for the insured was that this did not amount to “overloading” or “incorrect loading” of the crane because the expert evidence revealed different definitions of “overloading”, and the policy should be construed against the insurer and in favour of the insured to encompass only a load in excess of the safe working load of a crane applied vertically to the crane hoist rope. Winneke P (with whose reasons Phillips and Charles JJA agreed) affirmed the judgment in favour of the insurer. Winneke P considered that there was “nothing ambiguous about the word “overloading” when read in the context of this policy”; the insurer’s liability for sudden and unforeseen damage to machinery was excluded where the damage was “due to loading the machinery beyond its capacity in the circumstances in which it is being operated” and nothing in a policy required the word “overloading” to be given any meaning other than its “plain and natural meaning”.
[41] In that case the crane failed because of the imposition of an additional dynamic load. In this case the crane failed because of the imposition of an additional structural load, the result of the crane being operated on a slope. In each case the crane was “overloaded” within the ordinary and natural meaning of that word. It is plainly not a ground for adopting a narrower meaning of “overloading” in the present case that the word is used in a clause designed to extend the primary cover whereas it was used in an exclusion clause in J J Leech & Sons (Vic) Pty Ltd.
[42] Upon a literal construction, indemnity would be excluded by one or more of exclusions 21, 26(b), 26(d) and 27 where the damage occurred as a result of the crane being overloaded in a way which contravened the manufacturer’s guidelines and a relevant Australian Standard. Such a construction cannot be reconciled with the extension of cover for non-deliberate, clearly unintentional, accidental overloading and the absence from the accidental overload clause of the words “which is located and in use in the manner in which it was designed to be used”, which qualify the cover afforded by the scope of cover clause. Both the construction for which the appellant advocated and the construction adopted by the primary judge require the exclusions to be read down. As the primary judge recognised, if they are not read down to some extent the additional cover intended by the accidental overload clause would be illusory.
[43] The question is whether the circumstance that the construction advocated by the appellant renders the exclusions inapplicable in a wider range of events supports the primary judge’s construction. In my respectful opinion it does not.
[44] Even upon the narrower construction preferred by the primary judge the most relevant exclusion, clause 26(b), appears to have no operation; the phrase “loaded in excess of the safe working load” in that exclusion certainly comprehends the burden picked up by the crane being too heavy for the crane to lift on level ground. The required reading down of the exclusions upon the appellant’s construction is simply a consequence of the parties’ agreement in the accidental overload clause that indemnity will be afforded for “overloading” within the ordinary and natural meaning of the word where the other requirements of that clause are also fulfilled. Those other requirements are significant. The primary judge’s concern that the appellant’s construction would permit recovery where the crane was overloaded as a result of it being operated on a slope in “clear contravention” of the relevant guidelines and Australian Standards is substantially ameliorated by the requirements in the accidental overload clause, that, in addition to the damage being accidental, sudden and unforeseen (as required by the definition of “insured damage”), the overloading itself must be accidental, non-deliberate and clearly unintentional. Any contravention of the manufacturer’s guidelines or the Australian Standards that amounts to “overloading” and which fulfils those additional requirements is covered by the accidental overloading clause.
[45] I accept the appellant’s contention that the damage to the crane was caused by “overloading”.
Did the primary judge err in finding:
(i) that the overloading was not “accidental” overloading within the meaning of the accidental overload clause, and
(ii) the damage to the crane was not “accidental, sudden and unforeseen”
[46] The primary judge accepted the appellant’s submission that the damage must be “accidental, sudden and unforeseen” from the perspective of the operator, Hitaua, rather than from the appellant’s perspective. The primary judge expressed the applicable test for deciding that question as being whether it could be said that “the Policy was concerned with protecting the plaintiff from liability arising from the actions or inactions of an operator supplied by the plaintiff …”[30] and held that upon the proper construction of the policy, it aligned the actions of the operator with the appellant.[31]
[47] The primary judge applied Fenton v Thorley in holding that the word “accidental” in the definition of “insured damage” and in the phrase “accidental overloading” in the accidental overload clause connoted an “unlooked for mishap or an untoward event which is not expected or designed”.[32] The primary judge held that if “overload” included an overload resulting from the crane being operated on a slope, that overload was “not unintended and unexpected” for the same reasons the primary judge gave for holding that the boom collapse was not “insured damage”.[33] The primary judge found it to be uncontroversial that the boom collapse was not intended by Hitaua.[34]
[48] The primary judge described the critical question as being “whether the collapse was unexpected and unforeseen”.[35] In that respect the primary judge referred to Australian Casualty Co Ltd v Federico,[36] in which Wilson, Deane and Dawson JJ observed that “… it may, in some cases, be necessary to define with greater precision what is involved in the notion that a mishap be unintended and unexpected … a case where more precise definition of these notions would be required is where the risk of the mishap was foreseen or courted even though it was thought unlikely that it would occur…”.
[49] The primary judge concluded that there were objective qualifications upon the subjective test whether the damage to the crane was “accidental, sudden and unforeseen” from Hitaua’s perspective:
“(a)where an assured gambles or courts a risk or takes a calculated risk with knowledge of its outcome,[37] that is, a deliberate acceptance of that risk; or
(b)where an assured voluntarily embarks on a foolhardy venture from which the loss or damage that resulted was the almost inevitable consequence.[38]”[39]
[50] The primary judge endorsed the analysis by Gallen J in Hurley Contractors Ltd v Farmers Mutual Association[40] that this involved “imputing intention” or “imputing deliberation” because one’s actions are so hazardous and culpable they amount to a “courting, inviting or wooing” of the risk. The primary judge also referred to Derrington J’s analysis in Westco Australia Pty Ltd v Manufacturer's Mutual Insurance Limited[41] that the situation must be “so bad that it was more than merely an accident on [his] part and was such as [he] should have expected in the result because of [his] experience or because of the obvious nature of the circumstances leading to the event”.[42]
[51] The primary judge accepted that Hitaua believed that the concrete rubble constituting the “ramp” would be crushed by the weight of the loaded crane so as to create a level working ground, and that this was a common practice and belief held by a number of individuals, including Sprecak (who was experienced in operating a 70 tonne crane). The primary judge identified three factors which nevertheless supported the conclusion that the collapse of the boom was not “accidental” for the purposes of the policy:
- Hitaua knew that the crane should be operated on level ground and that if it were not operated on level ground there was a risk that the boom would fail.
- Hitaua disregarded Sprecak’s advice that the “ramp” which had been constructed under Hitaua’s direction was too high.
- Within the 12 seconds during which Hitaua was crawling the crane up the ramp from the position marked “B” on exhibit 40 to the crane’s final position Hitaua “must have appreciated” that “the rubble was not compressing as he expected and … from looking at the spirit level, the crane was not being operated on level ground”.
[52] The primary judge observed that the “simple point is that Hitaua knew that the Crane should never be operated on a slope and that if it was there was a real risk of the boom collapsing”, and “Hitaua, by continuing to crawl the Crane up the ramp without ensuring that the rubble was crushing in accordance with his expectations, fails to satisfy the requirement of accident due to recklessness, a gamble or a deliberate courting of the risk of which he was well aware”.[43] The crane moved very slowly and was a “significant way along the rubble ramp when the boom collapsed”; “Hitaua must have reached a point where his belief or expectation that the rubble would crush simply could not be sustained”.[44]
[53] Accordingly the primary judge concluded that the appellant failed to prove that the damage was accidental from Hitaua’s perspective. The primary judge went on to consider whether the appellant failed to prove that the damage was accidental from the appellant’s perspective. The primary judge accepted the evidence of a director of the appellant, Wood, to the effect that Hitaua was trained and licensed to operate the crane and that a fellow director, Clark, was also trained in the operation of a 100 tonne crane. The primary judge concluded that the appellant’s unexplained failure to call Clark to give evidence in circumstances where Clark was on-site both before and after the incident justified an inference that Clark’s evidence would not have assisted the appellant’s case in establishing that damage to the crane was accidental. That the appellant had failed to discharge its onus of proving that the damage was accidental from the appellant’s perspective.
[54] The primary judge had earlier noted the appellant’s trial plan revealed that the appellant intended to call Clark as a witness and did not do so for reasons which remained unexplained. The primary judge accepted the following paragraph of the respondent’s written submissions as an accurate summary of what the evidence established in respect of Clark:[45]
“82.The evidence establishes the following in respect of Steven Clark:
- Mr Clark is, and was, a director of the Plaintiff as well as a director of Pinjara [sic] Constructions Pty Ltd on or about the 1st of February 2009. He was also a director of Masters Projects Group Pty Ltd.;
- He was on the site before and during the collapse of the Crane. His ute was struck by the boom of the Crane as it collapsed;
- Mr Clark was a person helping Mr Hitaua to do his work or controlling him to do his work;
- He took some photographs with his mobile phone shortly before the collapse occurred;
- He communicated with the builder to ensure that the ground was suitable and verbally communicated that it was to Mr Hitaua;
- He had operated the relevant Crane himself and participated in a training course. Mr Clark had removed the Crane off the truck and positioned it off the ground at the site;
- Mr Clark was present during, and involved in the interview with Mr McCosker. In the interview with McCosker he said he saw Hitaua jump from the Crane after the boom collapsed. He also said that the Crane had operated at 4 degrees on other occasions.
- Information has been imparted by Mr Clark to Mr Cusack which was significant to his analysis of the facts.” (references omitted)
The parties’ arguments
[55] The appellant argued that the primary judge erred in characterising the facts as a deliberate courting of the risk such as to render the overloading and consequential damage neither unexpected nor unforeseen and thus not accidental. The appellant emphasised that the primary judge did not find that Hitaua courted the risk by driving the crane on to the ramp. Once on the ramp, the relevant risk had been encountered or at least it had commenced to develop; in those circumstances, and bearing in mind that the crane was damaged when it had travelled only 3.35 metres or about a quarter of its length up the “ramp”, it was not open to find that Hitaua had deliberately accepted the risk. The primary judge failed to take into account that, even if Hitaua did reach a point where his belief or expectation that the rubble would be crushed was unsustainable, it was not obvious that he should have reversed rather than continuing to go forward. Although the primary judge relied upon the factor that Sprecak expressed the opinion that the rubble was too high, Hitaua, as the crane operator was the person responsible for the conditions in which the crane operated and had the last say. The appellant referred to the primary judge’s finding that Hitaua’s response to Sprecak that, “when the red light is flashing, do not listen to Gary [Sprecak]” did not suggest that there was a red light on the crane flashing, but suggested rather, “that he as the operator of the crane was ultimately responsible for ensuring that it was operating on level ground” and that he “had the last say and had to be satisfied with the level of the ground upon which the crane would be operating”.[46]
[56] The appellant argued that there were relatively few cases in which a “courting of the risk” had been found to deny characterisation of subjectively unexpected and unintended events as accidents. Derrington J said in Westco Australia Pty Ltd v Manufacturer's Mutual Insurance Limited that an insured “rightly expects to be covered … against liability … which arises even though it be the result of negligence” and that the “courting of the risk” qualification applies where the situation is “so bad that it was more than merely an accident … [and] should have been expected in the result because of [his] experience or because of the obvious nature of the circumstances leading to the event”. The appellant argued that this test could not be regarded as satisfied in circumstances in which Hitaua had taken care and time in ensuring the placement of the concrete fill, that the use of concrete fill in such circumstances was common in the industry, and its very purpose was to provide a level platform on which the crane was to operate. The appellant also relied upon evidence given by Hitaua that the crane was fitted with an alarm which had sounded on a previous occasion when the ground sank as Hitaua caused the crane to lift a panel. On that occasion Hitaua reacted by lowering the load on to the ground, bringing the crane back up to level, and repositioning the crane.[47] The damage to the crane occurred two days later and it was not suggested that the alarm sounded at that time.
[57] The appellant referred to Cooke J’s statement in Mount Albert City Council v New Zealand Municipalities Co-operative Insurance Co Ltd[48] that the non-deliberate causing of damage by an insured is not accidental where that conduct “is nevertheless so hazardous and culpable that the event cannot fairly be called an accident”, that “unless the evidence justifies the interference that [the insured] deliberately incurred the risk one would be very slow to find that the event was other than an accident”, and that it is “not decisive that the risk may have been deliberately run or calculated” because, for example, an occurrence might be found to be an accident “if the risk was reasonably seen by the insured as not a high one”.
[58] The appellant argued that the primary judge did not find that Hitaua was actually aware that the crane was not compressing the concrete rubble as Hitaua anticipated that it would, or at least the primary judge did not find that Hitaua understood that the rubble was not compressing and that the crane was not being operated on level ground before the risk of failure eventuated after the crane reached its final position. The appellant also argued that 12 seconds was too short a period of time to justify a conclusion that the appellant could be regarded as having recklessly and deliberately courted the relevant risk such as to deny the characterisation of accidental. The primary judge should not have drawn the inference that Hitaua courted the risk in circumstances in which Hitaua had been responsible for a great deal of care being taken to ensure that the ground was level and where the risk involved not only collapse of the crane with consequent property damage but also risked the health and safety of the men standing next to the load.
[59] The appellant’s primary position was that, for the purposes of determining whether or not the overloading was accidental, the only relevant perspective was Hitaua’s perspective, particularly in view of the finding that the actions of Hitaua should be aligned with those of the appellant.[49] The appellant also argued that the primary judge erred in concluding that its failure to call Clark to give evidence justified a finding that the appellant had not discharged its onus of proving that the incident was “accidental” from the appellant’s perspective. The appellant argued that the evidence about Clark established only that he was on-site on the morning of the collapse, he took a photograph of the crane whilst riggers attached the props to panel 30, that photograph was taken at least 10 to 30 minutes or longer before Hitaua manoeuvred the crane to place panel 30, Clark did not help or control Hitaua to do his work but merely liaised with him, although Clark communicated with the builder about the conditions of the ground at the site it was Hitaua who assessed the conditions of the ground after the concrete rubble was placed, and there was no evidence before the primary judge justifying the conclusion that during an interview about the incident Clark said that he saw Hitaua jump from the crane after the boom collapsed.
[60] The respondent submitted that the primary judge correctly found that the plaintiff did not prove the boom collapse was unexpected or unforeseen. In addition to endorsing the primary judge’s reasons for that conclusion, the respondent argued that, to the extent that there was any relevant uncertainty about the cause of the collapse, the appellant should fail because the onus of proving accidental overload was upon it. The appellant could not fulfil that onus in circumstances in which the primary judge rejected the evidence in the appellant’s case about the manner in which the collapse occurred, including Hitaua’s evidence that the crane was level and not on the ramp at the time of the collapse. The respondent emphasised that Hitaua knew that the crane should not be operated on a slope, that operation of the crane on a slope created a risk of failure, the operating manual made the risks very clear, and the magnitude of the risk and its consequences were substantial.[50] The respondent argued that the primary judge’s findings about the role of Clark were accurate. The primary judge was correct in concluding that it was not a case in which the plaintiff could be “totally disassociated”[51] from the actions of Hitaua.
Consideration
[61] In the context of the scope of cover clause, and the definition of “insured damage”, the accidental overload clause plainly requires both that the damage to the crane be caused by accident and that the overloading itself be caused by accident. The overloading was accidental only if its proximate cause was an accident.[52] The proximate cause of the overloading was operating the loaded crane upon a seven degree incline. Was that an accident?
[62] Upon the findings of fact, Hitaua’s appreciation of the critical importance of the crane being operated on level ground and of the risk of failure if it was operated on a slope explained why he attempted to ensure that the ground upon which the crane was to operate would be level. It is also true that the finding that Hitaua was “warned by Sprecak” that the ramp was too high and he disregarded that advice must be understood in the context of the primary judge’s earlier findings to the effect that Hitaua, not Sprecak, was ultimately responsible for ensuring that the crane would be operating on level ground and that Hitaua and Sprecak both expected the loaded crane to compress the rubble ramp. Even so, those factors supplied contextual support for the primary judge’s ultimate conclusion, in that Hitaua was on notice that the ramp was thought by someone with relevant experience to be too high and Hitaua knew that such a situation would create a risk of failure. The critical finding though is that within the 12 seconds of crawling the crane up the ramp to its final position, Hitaua “must have appreciated” that the rubble was not compressing as expected and that “from looking at the spirit level, the crane was not being operated on level ground.”
[63] When the loaded crane started to crawl up the ramp, the change in the angle upon which it was operating, and thus any consequential overloading of the crane, might have been regarded as accidental. The appellant’s argument that the subsequent operation of the crane upon a seven degree incline was an accident seems plausible because of that circumstance and the circumstances that only 12 seconds might have elapsed before the boom failed, for at least some of that time Hitaua might have been focussing on matters other than whether or not the ground was level (including the necessity to crawl the crane into a confined area), and that Hitaua’s original expectation that the crane would crush the concrete rubble might have persisted until the collapse of the boom became inevitable. However that argument ultimately founders upon the primary judge’s findings of fact and rejection of Hitaua’s evidence.
[64] The critical finding was informed by the importance of the crane being operated in its then operating mode on level ground (as was emphasised in the manufacturer’s guidelines and the Australian Standards), that Hitaua fully appreciated as much (suggesting that it is likely that he would have regularly checked the spirit level as the crane crawled up the ramp), and Hitaua’s own evidence that it was necessary to refer to the spirit level “every time” when operating the crane to ensure that it was level and that he did look at the spirit level. (The primary judge rejected Hitaua’s evidence that he was “always” looking at the spirit level, but the primary judge did not find that Hitaua did not look at the spirit level during that period.) To those matters must be added the primary judge’s finding that Hitaua knew that any operation of the crane at more than one degree gradient required a separate assessment, Hitaua believed that the crane should “never” be operated on a slope, and he knew that doing so created a “real risk of the boom collapsing”.[53] The risk of very serious damage in this situation was manifestly high and there was no evidence that Hitaua and the appellant (through Clark) did not appreciate that.
[65] In the early passages of the reasons, the primary judge did not find that Hitaua knew that the rubble was not compressing as he had expected or that the spirit level revealed that the crane was not being operated on level ground. The primary judge found only that “if” Hitaua had looked at the spirit level within that 12 seconds he “would have known” that the crane was not on level ground[54] and that “[h]ad he been observing the spirit level it must have been obvious to him that the Crane was not being operated on level ground”.[55] In the course of expressing the ultimate conclusions upon these questions, however, the primary judge used quite different language. Hitaua “must have appreciated” that the rubble was not compressing and “from looking at spirit level, the Crane was not being operated on level ground”. That is consistent with the primary judge being satisfied that Hitaua knew those facts. The primary judge did not advert to Hitaua’s evidence about the alarm sounding on a previous occasion but not on this occasion. In so far as that evidence suggested that the crane was not operating on an angle or that Hitaua was not aware of that, it was necessarily rejected in the primary judge’s findings to the contrary.
[66] The primary judge did not make findings about the angles at which the crane was operating during the whole 12 second period before it reached its final position at an angle of seven degrees. The photographic evidence, including exhibit 40, is not conclusive about that, but those photographs make it seem likely that the crane must have operated at an angle or angles much greater than one degree from when the front of the crane was at the point marked “B” on exhibit 40. In the absence of evidence to the contrary, and given the known importance of the crane being operated on level ground, it is a reasonable inference that Hitaua would have focussed upon the spirit level from when he started to crawl the crane up the ramp, with the result that he had at least about 12 seconds[56] to appreciate that he was operating the crane on an incline, the rubble was not being crushed as he had expected, and he was incurring the risk of the boom collapsing. In any event, because Hitaua’s evidence was rejected, the appellant did not prove that Hitaua did not know from the start that the crane was operating on a dangerous angle.
[67] It is implicit in the primary judge’s findings that 12 seconds was sufficient time for a full appreciation by Hitaua that it was reckless to continue proceeding up the ramp and he should stop. So far as the accepted evidence reveals, the collapse of the boom might have been avoided at any time within that period. That it may be described as a short period of time is not a sufficient basis for concluding that the primary judge was mistaken in holding that Hitaua’s conduct in continuing to crawl the crane up the ramp for 12 seconds amounted to “recklessness, a gamble or a deliberate courting of the risk of which he was well aware” such that the overloading and resulting collapse of the boom did not amount to an “accident” in circumstances in which Hitaua knew that the rubble was not compressing as he had expected, the crane was not being operated on level ground, any further operation of the crane called for a separate assessment, and there was a real risk of the boom collapsing.
[68] The appellant did not argue that the primary judge applied the wrong test in deciding whether or not the overloading and resulting collapse were “accidental”. The primary judge accepted that it was necessary that the circumstances be sufficient to justify “imputing intention” or “imputing deliberation” because the relevant actions are “so hazardous and culpable they amount to a courting, inviting or wooing of the risk”,[57] “so bad that it was more than merely an accident on [the insured’s] part and was such as [the insured] should have expected in the result because of [the insured’s] experience or because of the obvious nature of the circumstances leading to the event”,[58] or a case in which, “an assured voluntarily embarks on a foolhardy venture from which the loss or damage that resulted was the almost inevitable consequence”.[59]
[69] Those expressions are different ways of describing the cause of an event which does not fall within the ordinary meaning of the word “accident” in this context. I would affirm the primary judge’s conclusion that the appellant failed to prove that the overloading and resulting collapse were accidental from Hitaua’s perspective.
[70] In so concluding, the primary judge applied what were described as “objective qualifications”[60] to the otherwise subjective test of accident. The relevant findings of primary fact refer to what Hitaua himself knew and believed and what he must have known and believed. Hitaua’s own evidence upon those topics was rejected and the findings were inferences wholly drawn from facts established by other evidence. Those inferences were as applicable in relation to a reasonable person in Hitaua’s position as they were in relation to Hitaua himself. The primary judge’s ultimate conclusions are equally applicable whether the test for accident is wholly subjective or partly subjective and partly objective. For example, the primary judge’s conclusion that there was “a deliberate courting of the risk of which [Hitaua] was well aware” comprehends a conclusion that, upon a wholly subjective analysis, Hitaua deliberately courted the risk of the boom being overloaded and failing. The appellant did not argue that the primary judge’s decision was falsified by the adoption of a partly objective test rather than a wholly subjective test.
[71] Upon the primary judge’s findings of fact (notably including the rejection of Hitaua’s evidence that the crane remained on level ground throughout and the findings to the contrary), the appellant did not prove that Hitaua did not deliberately operate the crane on an incline knowing that this would overload the crane. For all the accepted evidence reveals, Hitaua may have underestimated the extent of the overloading or wrongly thought that it would not be sufficient to cause the boom to collapse as it did. The primary judge declined to draw an inference that Hitaua did not expect that operation of the crane on the incline would overload it. In my respectful opinion that was not an error which is susceptible to appellate correction. Upon the accepted evidence Hitaua must have known for an appreciable period of time that he was operating the crane on the incline and he knew that operation of the crane on such an incline was dangerous and contrary to provisions in the manufacturer’s manual and Australian Standards which were designed to prevent overloading. Furthermore, even if Hitaua did not expect that the crane would be overloaded by his operation of the crane on the incline, the appellant failed to prove that Hitaua did not deliberately court such a high degree and seriousness of risk that the crane would be dangerously overloaded by its operation on the incline that the overloading should not be regarded as “accidental” upon the unchallenged test applied by the primary judge (see [68] of these reasons).
[72] In relation to the primary judge’s further conclusion that the damage was not “accidental” in the sense of “unexpected” or “unforeseen” from the appellant’s perspective, there is no substance in the appellant’s argument that the primary judge erred by relying upon the evidence that during the interview Clark said that he saw Hitaua jump from the crane after the boom collapsed.[61] The primary judge recorded that this was part of an accurate summary of what the evidence established in respect of Clark but that fact was not relied upon in relation to the present topic. Nor did the primary judge rely in this context upon the finding that Clark helped and controlled Hitaua to do his work. Rather, the primary judge relied upon the finding that “Clark was on-site both before and after the collapse and participated in interviews with investigators …”.[62] That finding reflected uncontroversial evidence. Clark was on site on the morning when the boom collapsed. Clark had operated the crane himself in the past and participated in a training course. When the crane was trucked to the site Clark had removed it from the truck and positioned it on the ground at the site. He took a photograph of the crane shortly before the event whilst the riggers were attaching props to panel 30. Clark communicated with the builder about the ground conditions at the site. When the boom collapsed Clark’s vehicle was so close to the crane that it was damaged. Clark supplied information to an expert witness retained for the appellant. He also participated in the interview concerning the cause of the collapse.
[73] The appellant did not argue that the evidence of the appellant’s other director, Wood, was sufficient to satisfy the appellant’s onus of proving that the overloading and the collapse of the boom was an accident from the appellant’s perspective. Such an argument would be difficult to maintain upon the basis of the primary judge’s summary of Wood’s apparently brief evidence[63] in circumstances where Wood was not on-site at the relevant time and Clark – an appropriately qualified director of the appellant who was present apparently as the appellant’s representative before and during the collapse of the boom - was not called to give evidence. In the result, the primary judge’s rejection of the appellant’s case that the boom failed whilst the crane remained on level ground and the contrary findings of fact left the appellant without any reliable evidence to prove that the overloading of the crane was accidental from its perspective or from Hitaua’s perspective. That being so, it is not necessary to consider whether the terms of this policy justified departure from the more usual position[64] that the question whether an event is accidental is to be judged from the perspective of the assured.
Proposed orders
[74] I would dismiss the appeal with costs.
[75] MORRISON JA: I have had the very great advantage of reading the draft reasons prepared by the President and by Fraser JA. That means that I can express my reasons in far shorter form than would otherwise be the case.
[76] I gratefully adopt paragraphs [13]-[45] of Fraser JA’s reasons. I agree with his conclusion that the damage to the crane was caused by “overloading”.
[77] That leaves the other issues, that is, whether the overloading was “accidental” overloading within the meaning of the accidental overload clause, and whether the damage was “accidental, sudden and unforeseen”. As to them, I am able to adopt paragraphs [46]-[60] of the reasons of Fraser JA. However, I have come to a different conclusion as to the outcome of these issues.
Discussion
[78] The “ramp” was described by the experts in a way that was adopted by the learned primary judge as the way in which that term was to be understood in the Reasons:[65]
“The use of the term ramp is eschewed. Loose rubble was placed on the ground in front of the crane. The rubble was proud of the surrounding ground surface. The rubble was overfilled deliberately with the intention of it being compressed by the crane.”
[79] The learned primary judge made a series of factual findings after having reviewed the evidence of all witnesses, and rejecting several parts of Hitaua’s evidence:[66]
- Hitaua knew that the Crane had to be operated on level ground.
- Hitaua was aware of his obligations to operate the Crane in accordance with the manufacturer’s guidelines.
- He appreciated that if the Crane was operated on a slope it exposed the Crane to a risk that there might be a failure of the boom or other structural members.
- He knew that if the Crane was to be operated at more than 1 degree gradient this required separate assessment.
- Hitaua, for the placement of panel 30, spent somewhere between 10 to 30 minutes (perhaps longer) in constructing a rubble ramp (as that term is described in [38] above).
- Sprecak told Hitaua that the ramp which he had constructed was too high. This advice was ignored.
- Hitaua, prior to crawling the Crane onto the ramp, expected that the combined weight of the Crane and panel 30 would compress the rubble, so that the Crane would be operating on level to near level ground.
- Hitaua intended to crawl the Crane past the final position of the Crane shown in the photographs (exhibit 12) hard up against panel 31 in order to reach a marked white cross.
- Hitaua crawled the Crane for a period of 12 seconds from the position marked “B” on exhibit 40 to the final position of the Crane depicted in the photographs (exhibit 12).
- The boom was somewhere between a 45 degree or 90 degree angle when Hitaua was crawling up the ramp.
- Hitaua crawled the Crane between the two props or braces that were supporting panel 31 to the position shown in exhibit 65.
- At the position of the Crane shown in the photographs (exhibit 12 and exhibit 65), Hitaua attempted to slew “a wee bit more” to the right so that he could track forward “a wee bit more” in order to drop panel 30 into place.
- The ramp did not compress as Hitaua had expected.
- Hitaua had 12 seconds of crawling the Crane up the ramp to appreciate that the rubble was not compressing as he expected.
- Hitaua, if he had been looking at the spirit level at any time within the 12 seconds the Crane was crawling up the ramp from the position marked “B” on exhibit 40 to the Crane’s final position, would have known that the Crane was not being operated on level ground.
- The boom of the Crane collapsed when the Crane was on the ramp in the position depicted in the photographs (exhibit 12 and exhibit 65).
- The Crane in its final position was on a slope of 7 degrees.
- The boom of the Crane collapsed because of structural overload due to the slope of the ramp in conjunction with the carrying of a 39.2 tonne load.
[80] Finding No. 6 needs some greater explanation. In cross-examination Sprecak accepted that he questioned Hitaua as to the ramp being “too high”. What he said was in two previous statements:
(a) “I questioned James that the ramp was too high”;[67] and
(b) “… don’t you think that’s a little bit high. … you should knock that down cause … you don’t need that. You know probably only … two or three bits of concrete just to keep it level keep your toe of your crane it’s got to be flat on the ground and that’s where you get your troubles if you have your rocking now ...”.[68]
[81] However the findings made earlier in the reasons do not justify that part of No. 6 whereby it was found that Hitaua “ignored” the advice from Sprecak. At Reasons [43] his Honour said, as to Hitaua’s response (i.e. “When the red light’s flashing, do not listen to Gary [Sprecak]”), that it should not be understood as suggesting that the red light on the crane was actually flashing. His Honour went on:
“… the response suggests that he as the operator of the Crane was ultimately responsible for ensuring that it was operating on level ground. As the operator of the Crane he had the last say and had to be satisfied with the level of the ground upon which the Crane would be operating.”[69]
[82] In my view, the findings in Reasons [43] cannot support the finding in Reasons [121], i.e. that Hitaua ignored the advice proffered by Sprecak. Rather, it was that he preferred his own view, given that he had the last say. That conclusion is also compelled by the finding that both Hitaua and Sprecak expected the ramp to compress under the weight.
[83] Finding No. 7 also has to be expanded. His Honour found that both Sprecak and Hitaua believed the rubble ramp would compress under the combined weight of the crane and panel 30.[70]
[84] Finding No. 13 must consequently be expanded. The ramp did not compress as Hitaua and Sprecak had expected.
[85] An additional finding that should have been made comes from the evidence accepted by the learned primary judge. At Reasons [34]-[35] his Honour recited that Sprecak took steps to level the ground over which the crane was to move. He did this by directing an employee to place the concrete rubble, and place it between where the stacks of panels were and the building.
[86] Thus the findings establish that Sprecak and Hitaua were agreed on some things:
(a) first, the existing ground was unsuitable for the crane to advance, with its load suspended on the boom;
(b) secondly, that the appropriate method to overcome that was to place concrete rubble on top of the area where the crane was to move;
(c) thirdly, that the rubble would be placed so that was higher than the ground level otherwise;
(d) fourthly, that the rubble should be placed in a way whereby it would compress when the crane ran onto it;
(e) fifthly, that necessarily meant that the crane would move up an incline until such time as the rubble compressed;
(f) sixthly, that the crane could and should move forward over the rubble while its load was on the end of the boom; and
(g) seventhly, each of Sprecak and Hitaua expected that the rubble would compress under the combined weight of the crane and load.
[87] The learned trial judge made findings about the judgment that the rubble would crush:[71]
“Hitaua’s belief was that the concrete rubble would crush under the weight of the loaded crane and create a level working ground. There was evidence to suggest that this was common practice and a belief held by a number of individuals including Sprecak who was experienced in operating a 70 tonne crane. Both Sprecak and Hitaua speak of this rubble filling as a common method of ground filling in the tilt panel construction industry.”
[88] Those matters, in my view, lead to the conclusion that the method used to advance the crane into position to put panel 30 in place, was appropriate and not risk-taking. What each of Sprecak and Hitaua were wrong about was their judgment that the rubble would compress when the combined weight of the crane and load were applied.
[89] I do not consider that the actual driving of the crane (plus its load) onto the rubble can be divorced from the decisions as to how to do so, when one considers whether this event was “accidental” or “accidental, sudden and unforeseen”. The learned trial judge’s finding was that the “direct or dominant cause of the loss or damage to the Crane was the collapse of the boom due to structural overload resulting from operating the Crane on a slope of 7 degrees in conjunction with the carrying of a 39.2 tonne load”.[72] However, the crane only came to be on the slope because it was anticipated that the rubble would compress or crush, and it did not.
[90] Therefore, in my view the question that must be answered is whether the judgment of Sprecak and Hitaua on that issue involved such a level or recklessness or risk-taking that it cannot be found to be an accidental.
[91] Sprecak questioned whether the ramp was too high, not that a ramp should be used to move the crane and its load forward, nor any other aspect of the manoeuvre. Indeed, it was Sprecak who directed that concrete be placed to build the ramp. Hitaua had his own views about the question of height, but was otherwise in accord with Sprecak.
[92] The time taken to move the crane forward until the boom collapsed was only 12 seconds. I appreciate that the estimate of 12 seconds was based on the distance shown in exhibit 12 (3350mm) and the maximum speed for the creeper gear as revealed in the operating instructions (1km/hr, or 280mm per second).[73] However, findings No. 9 and 14 above were that Hitaua only drove the crane forward for 12 seconds. The 12 seconds was up until the collapse occurred.[74] Hitaua only had those 12 seconds of crawling the crane up the ramp to appreciate that the rubble was not crushing as he expected.
[93] Finding No. 15 is that if Hitaua had been looking at the spirit level at any time within those 12 seconds he would have known that the Crane was not being operated on level ground. That is not a finding that he did look at the spirit level. Equally there is no finding that he did not look at it.
[94] As Fraser JA points out there is tension between that finding and one made later in the judgment below, expressed in this passage:[75]
“Hitaua had a full 12 seconds of crawling the Crane up the ramp from the position marked “B” on exhibit 40 to the Crane's final position. Within those 12 seconds he must have appreciated two things. First, the rubble was not compressing as he expected and second, from looking at the spirit level, the Crane was not being operated on level ground.”
[95] In my view, the tension must be resolved by accepting that the learned trial judge proceeded on the basis that Hitaua did look at the spirit level, but he was not “always looking at spirit level”: Reasons [50].
[96] It is true that Sprecak and Hitaua were wrong when they concluded that the rubble would crush. But even if they came to that conclusion negligently it would still not necessarily follow that the resultant damage was not accidental. As the learned trial judge observed:[76]
“It is well established that an accident can occur as a consequence of the insured’s negligence, even negligence that may attract a certain degree of criticism.”
[97] The learned trial judge expressed three reasons why, notwithstanding the judgement that the rubble would compress or crush was reasonable, the collapse of the crane boom was not “accidental”:
(a) Hitaua knew the crane had to be operated on level ground, and if it did not there was a risk the boom might fail;[77]
(b) he continued to crawl the crane up the slope without ensuring the rubble was crushing in accordance with his expectations;[78] and
(c) he must have reached a point where his belief or expectation that the rubble would crush simply could not be sustained.[79]
[98] In my view that approach places too much significance upon the implicit conclusion that Hitaua continued when it was obvious that the rubble was not compressing, and gives too little significance to the limited time involved.
[99] The total time was only 12 seconds. It was expected that the rubble would be compressed by the combined weight of the crane and panel, as the crane moved onto the rubble. The rubble could not be compressed until the crane was actually on it. The crane was a 100 tonne crane, and at the end of the boom hung a panel weighing about 39 tonne. There was no evidence to suggest that Hitaua expected, or should have been expected, to visually judge whether the rubble was compressing appropriately. It was plainly a matter of judgment, just as was the decision that this was an appropriate way of moving the crane and panel into place.
[100] The judgments that the rubble would compress and therefore the crane could be driven onto it, and the failure to realise in time that the rubble was not compressing, meant that the damage was an “unlooked for mishap or an untoward event which [was] not expected or designed”.[80]
[101] The judgment that the rubble would compress, and the failure to realise in time that it was not compressing, may have been wrong, even negligent, but did not, in my view, reach the point where it could be said:
(a) the “risk of the mishap was foreseen or courted even though it was thought unlikely that it would occur”;[81] or
(b) that they were gambling or courting the risk, or taking a calculated risk, deliberately accepting the outcome;[82] or
(c) that they voluntarily embarked on a foolhardy venture, with the damage an inevitable consequence, by “courting, inviting or wooing” of the risk;[83] or
(d) that they deliberately incurred the risk.[84]
[102] In my view, for these reasons the overloading was “accidental” and the damage to the crane was “accidental, sudden and unforeseen”.
[103] I also agree with the reasons of the President, and the orders she proposes.
Footnotes
[1] See Fraser JA’s reasons [13] – [37].
[2] Above, [38] – [45].
[3] Set out in Fraser JA’s reasons at [19].
[4] Set out in Fraser JA’s reasons at [17].
[5] Set out in Fraser JA’s reasons at [18].
[6] See Fraser JA’s reasons at [30].
[7]Westco Australia Pty Ltd v Manufacturers Mutual Insurance Ltd (Unreported, Supreme Court of Queensland, Derrington J, D M Campbell and Kelly JJ agreeing, 22 May 1984); Mount Albert City Council v NZMC Insurance Co [1983] NZLR 193 – 194 (Cooke J, Somers and Jeffries JJ agreeing).
[8] [1903] AC 443, 448.
[9] [1983] NZLR 190, 194.
[10] Matton Developments Pty Ltd v CGU Insurance Limited (No 2) [2015] QSC 72, [173].
[11] Above, [36].
[12] Above, [82] (a) – (e).
[13] Above, [121].
[14] Above, [173].
[15] Above, [174].
[16] Above, [175].
[17] The word “or” appears to have been omitted inadvertently.
[18] [2015] QSC 72 at [43].
[19] [2015] QSC 72 at [38].
[20] [2015] QSC 72 at [121].
[21] [2015] QSC 72 at [122].
[22] [2015] QSC 72 at [185].
[23] [2015] QSC 72 at [186].
[24] [2015] QSC 72 at [187].
[25] [2015] QSC 72 at [188].
[26] [2015] QSC 72 at [189].
[27] The primary judge cited Alex Kay Pty Ltd v General Motors Acceptance Corporation [1963] VR 458, 462-463 (Sholl J) and Fraser v B N Furman (Productions) Ltd [1967] 1 WLR 898, 905-906 (Diplock LJ with whom Willmer and Winn LJJ agreed).
[28] [2000] VSCA 219 at [17]-[18].
[29] AS 2550.5 – 2002: Cranes, hoists and winches, Part 5; Mobile Cranes, p 27, Figure 6.8.4. “Note: Avoid working on sloping ground”, example (c).
[30] [2015] QSC 72 at [157].
[31] [2015] QSC 72 at [149]-[157].
[32] Fenton v Thorley & Co Ltd [1903] AC 443, 448 (Lord MacNaughten), quoted by Wilson, Deane and Dawson JJ in Australian Casualty Co Ltd v Federico (1986) 160 CLR 513, 527.
[33] [2015] QSC 72 at [192].
[34] [2005] QSC 72 at [173].
[35] [2015] QSC 72 at [173].
[36] (1986) 160 CLR 513 at 532.
[37] The primary judge referred to Dunn v Pain; Co-operative Insurance Company Australia (1991) 57 SASR 133; Mount Albert City Council v New Zealand Municipalities Insurance Co Ltd [1983] NZLR 190, 193; Australian Casualty Co Ltd v Federico (1986) 160 CLR 513, 532; Bridgeman v Allied Mutual Insurance Ltd [2000] I NZLR 433, 443-445.
[38] The primary judge referred to S & Y Investments (No 2) Pty Ltd (In Liq) v Commercial Union Assurance Co of Australia Ltd (1986) 44 NTR 14, 23-24 (Kearney J) and observed: “Here Kearney J did not focus on whether the manager had knowledge of the risk, but rather that by trying to frighten an intruder by firing a gun, he courted a risk that an injury would occur. However it may be that knowledge of that risk is presumed in that case. See: Gray v Barr [1971] 2 QB 554, 586-587 (Phillimore LJ). See also: Westco Australia Pty Ltd v Manufacturer's Mutual Insurance Limited (Unreported, DM Campbell, Kelly and Derrington JJ, Full Court of the Supreme Court of Queensland, Appeal No 83 of 1983, 22 May 1984); Hurley Contractors Ltd v Farmers Mutual Association (1991) 6 ANZ Insurance Cases ¶61-076.”
[39] [2015] QSC 72 at [171].
[40] (1991) 6 ANZ Insurance Cases ¶61–076.
[41] Unreported, DM Campbell, Kelly and Derrington JJ, Full Court of the Supreme Court of Queensland Appeal No 83 of 1983, 22 May 1984.
[42] [2015] QSC 72 at [172].
[43] [2015] QSC 72 at [173], [174].
[44] [2015] QSC 72 at [175].
[45] [2015] QSC 72 at [82].
[46] [2015] QSC 72 at [43].
[47] Transcript 2- 40, 2-41.
[48] [1983] NZLR 190 at 194.
[49] Appellant’s outline filed 6 October 2016, para 52.
[50] The respondent disclaimed any contention that the primary judge’s rejection of that evidence justified a positive inference adverse to the appellant.
[51] S & Y Investments (No 2) Pty (In Liq) v Commercial Union Assurance Co of Australia Ltd (1986) 44 NTR 14, 23 (Kearney J).
[52] Australia Casualty Co Ltd v Federico (1986) 160 CLR 513 at 521 (Gibbs CJ), 535 (Brennan J).
[53] [2015] QSC 72 at [173].
[54] [2015] QSC 72 at [121].
[55] [2015] QSC 72 at [60].
[56] The period of 12 seconds was calculated by applying the fastest crawling speed of the crane to the distance which the crane crawled up the ramp. If Hitaua moved the crane at a slower speed, the time period would have been correspondingly longer.
[57] [2015] QSC 72 at [172], referring to Hurley Contractors Ltd v Farmers Mutual Association (1991) 6 ANZ Insurance Cases ¶61-076 (Gallen J).
[58] [2015] QSC 72 at [172], referring to Westco Australia Pty Ltd v Manufacturer’s Mutual Insurance Ltd (Unreported, D M Campbell, Kelly and Derrington JJ, Full Court of the Supreme Court of Queensland, Appeal No 83 of 1983, 22 May 1984).
[59] [2015] QSC 72 at [171(b)].
[60] [2015] QSC 72 at [171].
[61] [2015] QSC 72 at [82].
[62] [2015] QSC 72 at [178].
[63] The appeal record did not include a transcript of Wood’s evidence.
[64] See Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18 at [102], S & Y Investments (No 2) Pty Ltd (In Liq) v Commercial Union Assurance of Australia (1986) 44 NTR 14 at 23-24 (Kearney J), 39 (Ashche J); Lombard Australia Ltd v NRMA Insurance Ltd (1968) 72 SR (NSW) 45 at 48 (Wallace ACJ), 49 (Walsh JA), 53 (Holmes JA).
[65] Reasons [38]. In the Reasons below, and in the trial evidence, the terms “compress” and “crush” were used interchangeably. They are used that way in these reasons.
[66] Reasons [121]. There was not a wholesale rejection of Hitaua’s evidence. Those parts that were rejected were: that he was driving on level ground; that the crane not in the final position on Exhibit 12 because he had driven it there; and that he was “always looking at spirit level”: Reasons [50]. Hitaua’s evidence was accepted on some questions, such as to position B on Exhibit 12 being the start point; that is how the 12 seconds was reached.
[67] Reasons [39].
[68] Reasons [40].
[69] Reasons [43].
[70] Reasons [38].
[71] Reasons [173]. Internal footnote omitted.
[72] Reasons [147].
[73] AB 513, paragraph 11 of Mr Hartigan’s report.
[74] AB 517, paragraph 19 of Mr Hartigan’s report; Reasons [52].
[75] Reasons [173]; emphasis added.
[76] Reasons [168], citing Hurley Contractors Ltd v Farmers Mutual Association (1991) 6 ANZ Insurance Cases 61-076; Westco Australia Pty Ltd v Manufacturer’s Mutual Insurance Ltd (Unreported, D M Campbell, Kelly and Derrington JJ, Full Court of the Supreme Court of Queensland, Appeal No 83 of 1983, 22 May 1984).
[77] Reasons [173].
[78] Reasons [174].
[79] Reasons [175].
[80] Fenton v Thorley & Co Ltd [1903] AC 443, 448.
[81] Australian Casualty Co Ltd v Frederico (1986) 160 CLR 513, 532.
[82] Reasons [171].
[83] Hurley Contractors Ltd v Farmers Mutual Association (1991) 6 ANZ Insurance Cases 61-076. Reasons [171].
[84] Mount Albert City Council v New Zealand Municipalities Co-operative Insurance Co Ltd [1983] NZLR 190, 194 per Cooke J.