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CITE

Unreported Judgment

House v Anglo Coal (Callide Management) Pty Ltd[2016] QDC 303Dorney DCJ
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House v Anglo Coal (Callide Management) Pty Ltd[2016] QDC 303

DISTRICT COURT OF QUEENSLAND

CITATION:	House v Anglo Coal (Callide Management) Pty Ltd & Anor [2016] QDC 303
PARTIES:	GLYNN MARTYN HOUSE (plaintiff) v ANGLO COAL (CALLIDE MANAGEMENT) PTY LTD (ACN 009 666 200) (first defendant) and WORKPAC PTY LTD (ACN 111 076 012) (second defendant)
FILE NO/S:	212/2014
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	29 November 2016
DELIVERED AT:	Brisbane
HEARING DATES:	20, 21 and 22 September and 18 November 2016
JUDGE:	Dorney QC DCJ
JUDGMENTS AND ORDER: CATCHWORDS:	Judgment for the first defendant against the plaintiff. Judgment for the second defendant against the plaintiff. All parties have leave to file, and serve, written submissions on costs by 4pm on 6 December 2016. Employer/employee – labourer hirer/hiree – liability – whether vicarious liability – common law and statutory bases – whether contributory negligence
LEGISLATION CITED: TEXTS CITED: CASES CITED:	Civil Liability Act 2003 (Qld) Coal Mines Regulation Act 1982 (NSW) Evidence Act 1977 (Qld) s 84 Workers’ Compensation and Rehabilitation Act 2003 (Qld) Chapter 5, Part 8, ss 305B, 305D, 305E, 306, 306D, 306H, 306N, 306O Workers’ Compensation and Rehabilitation Regulation 2003 (Qld) Glass, McHugh and Douglas, The Liability of Employers, 2^nd ed, The Law book Company Ltd, 1979. Bennett v Minister of Community Welfare (1992) 176 CLR 408 Browne v Dunn (1829) 57 ER 909 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Czatyrko v Edith Cowan University [2005] HCA 14 Davis v Commissioner of Police [2016] QCA 246 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 Fox v Percy (2003) 214 CLR 118 Freeleagus v Nominal Defendant [2007] QCA 116 Ibrahim v Myer Queensland Stores Ltd [1996] QSC 116 Issa v Australian Alliance Insurance Company Ltd (t/as Shannons Insurance) [2016] NSWSC 1320 Kelly v Bluestone Global Ltd (In Liq) [2016] WASCA 90 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 McLean’s Roylen Cruises Pty Ltd v McEwan (1984) 58 ALJR 423 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Morris v D J Matheson Pty Ltd & Anor [2004] QDC 406 Pascoe v Coolum Resort Pty Ltd [2005] QDC 39 Prince Alfred College Inc v ADC [2016] HCA 37 Rains v Frost Enterprises Pty Ltd [1975] Qd R 287 Read v Nominal Defendant [2007] QSC 297 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 Roche Mining Pty Ltd v Jeffs [2011] NSWCA 184 Smith v Randall & Anor [2016] QSC 191 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Suncorp Staff Pty Ltd v Larkin [2013] QCA 281 TNT Australia Pty Ltd v Christie & Ors (2003) 65 NSWLR 1 Turner v State of South Australia (1982) 56 ALJR 839 Vincent v Woolworths Ltd [2016] NSWCA 40 Wilkinson v BP Australia Pty Ltd [2008] QSC 171 Woolworths Ltd v Perrins [2015] QCA 207 Wyong Shire Council v Shirt (1980) 146 CLR 40
COUNSEL:	R A Myers for the Plaintiff G F Crow QC for the First and Second Defendants
SOLICITORS:	Shine Lawyers for the Plaintiff Swanwick Murray Roche Lawyers for the First and Second Defendants

Introduction

[1]
In the early afternoon on 10 January 2011, the plaintiff, Glynn Martyn House, was injured when the Hitachi EH4500 280 tonne tipper truck (identified as “rear dump truck 1158”) which he was driving collided on a mine haul road with the rear of another truck (also being a Hitachi EH4500 280 tonne tipper truck – identified as “rear dump truck 1152”). Both vehicles were very large (as the photographs in Exhibit 10 attest), each being approximately 7.04 m high, approximately 8.15 m wide and approximately 14.1 m long. They were also white in colour. The plaintiff was then aged 52, having been born on 2 October 1958. He is now 58.

[2]
Whilst the plaintiff gave evidence, in accordance with his pleadings, that the rear dump truck 1152 was a “parked truck”, the driver of that truck gave contrary evidence to the effect that he was driving forward, slowly, at approximately 3 km/h to 5 km/h (“walking pace”).

[3]
The plaintiff sued both his employer, the second defendant, Workpac Pty Ltd, and the first defendant, Anglo Coal (Callide Management) Pty Ltd, with which the second defendant had contracted for the hire of the plaintiff’s labouring services at the mine site (which was owned and operated by the first defendant) called “Boundary Hill”, located near Callide in the State of Queensland. Since the terms of the plaintiff’s accepted Offer of Employment by the first defendant, on 31 December 2010, show a strong “employment” character, the relationship of the second defendant to the first defendant resembles that of a recruitment agency. Consequently, given the first defendant’s control of the workplace and its ownership of the plant, its relationship to the plaintiff is akin to that resulting from employment.

Layout of Boundary Hill

[4]
It is common ground that the gravel haul road down which both rear dump trucks travelled was part of a mine site where, on the day in question, both vehicles were travelling in a generally downwards path from “the top of the hill” (as described by the plaintiff). The trucks were in the process of, initially, being loaded with overburden (dug up by the “digger”) from the bottom of the hill, taking it to the top, dumping it, turning around, and coming back down again to get another load. As further described by the plaintiff, they were “just doing a circuit over and over and over again”. That day, as the plaintiff described it, the first defendant had set up a “one-in, one-out (system) whereby the trucks coming from the digger (at the bottom of the hill) have right of way”. That had the consequence that a truck coming downhill would “wait till that loaded truck (came) out and then (it would) go in and join the line to go to the digger”.

[5]
According to the plaintiff, the “designated or understood stop-off point” for unloaded trucks to allow the newly loaded trucks to exit from the digger area was at the bottom of the hill.

[6]
At the time of the collision, both trucks had navigated a significant portion of the haul road from the top to the bottom of the hill. The photographs in evidence indicated in a general way that the collision occurred on the last (straight) section of the haul road, though at a place where there was then no incline yet (agreed between the parties to be, therefore, taken as a 0% incline). Shortly before this straight section, the haul road (as shown in the photographs) took, for descending vehicles, a generally, and relatively gentle, full right hand turn.

[7]
In terms of speed limits, the plaintiff gave evidence that the speed on the haul road was generally 60 km/h, but at the top of the crest on that final straight section (also called “the ramp”), as it led down to where the digger was, there was a sign designating a limit of 30 km/h. It was not suggested to the plaintiff that those limits were wrongly described.

[8]
It was also not in dispute that the width of the haulage road would have permitted three rear dump trucks to stand side-by-side, obviously giving significant room for any two such vehicles proceeding in opposite directions to pass safely.

[9]
The left hand embankment edge, or “rill,” of the haulage road in its downwards direction, particularly in the area immediately prior to where the collision occurred, was shown in a number of photographs (including at the far right centre of photograph 35 in Exhibit 10).

Communication tools while using haul road

[10]
Both drivers of the rear dump trucks acknowledged that they had both UHF and VHF radio devices in their respective cabins. It was also generally accepted by both of them that the UHF band was, essentially, a “line of sight” method of communication and was used generally for less significant, or personal, contact. As for the VHF band, it was generally accepted that it was a means of communication for direct work-related matters, especially since it had a much wider broadcasting reach in its communication capacity. The UHF transmissions, unlike those on the VHF band, were not recorded.

[11]
The plaintiff originally stated in evidence, concerning such means of communication, that at the material times he did not hear anything which was broadcast on his radio, either a UHF or a VHF transmission, from anybody.

[12]
When cross-examined, the plaintiff then accepted that he had heard a VHF call made by Mr David Percival (who also gave evidence that he was the driller in the pit area at the bottom of the hill – which vehicle was visible in the photographs) in which Mr Percival had stated, “Light vehicle leaving pit”. The plaintiff further acknowledged that he, therefore, knew that a light vehicle was coming out of the pit on the opposite side of the road to the downward direction in which he was travelling and that this happened shortly prior to this incident.

[13]
The driver of the leading dump truck 1152 was Mr Jeremiah McClintock. His evidence was that he heard both a UHF call and a VHF call. As for the UHF call, it was to the effect that “the shovel” (that is, translated, “the operator of the shovel”) said that, “he was going to be down”. Mr McClintock stated that he was midway down the haul road when he heard that call. His recollection of the VHF call was that it was “a light vehicle call” about coming onto the circuit.

[14]
There is insufficient evidence from which it can be properly inferred that the plaintiff did receive the UHF call. It does not particularly matter since I accept that the later call was the VHF call and that some attention should have been paid to it by the plaintiff as it was about a vehicle exiting from the digger area.

Plaintiff’s training

[15]
Although the plaintiff readily conceded that the separation distance between his vehicle and that of Mr McClintock was important for the safety of both, the plaintiff’s answers in cross-examination showed that he was not only unsure of the distance to which it had been reduced on this day prior to applying the service brake but also that it only would be a “guess” at best.

[16]
This is in contrast with the plaintiff’s acknowledgment that he had undergone extensive pre-accident training (as set out in Exhibit 8), particularly from the written passages with respect to that training that informed him that the appropriate minimum separation distance was, as a general rule, to keep “approximately 50 m apart”: see page 145.

[17]
This training had been conducted in late April 2010, within one year before the collision. The answers to the test taken by the plaintiff at that time, particularly those answers in C15, C16, C17 and C18 (all of which were accepted by the plaintiff as completed by him) show that this minimum separation distance was appreciated, at least at that time, by the plaintiff. It is also obvious from the plaintiff’s answer to C16, with respect to the elements of a safe separation distance and speed limits as critical safety controls, that those elements were there to “give the operator a great reaction time to respond to (the) situation”. In cross-examination, the plaintiff accepted that safety was “very, very important” because “if these big plant have collisions, strike vehicles, people can get killed”.

[18]
What is, nevertheless, a little concerning is that, despite receiving that training and despite acknowledging the importance of these safety issues, the plaintiff, in cross-examination, described some of the answers that he had given in training as “just lip service sort of thing”, though it was acknowledged by him that “they talk (you) through it” and, in the end, seemingly he confined the term to being “given” the “answers”. It is also important that, with respect to Exhibit 8, the plaintiff in his own handwriting identified, among the four principal hazards, that of “operating mobile equipment”.

Duties, breaches and causation principles

[19]
Paragraph 4(a) of the amended statement of claim alleged that implied terms of the contract of employment between the plaintiff and the second defendant created certain particularised duties or, alternatively, that the same duties were owed by the second defendant to the plaintiff, as employer. Paragraph 4(b) alleged that those duties were not delegable to the first defendant. The second defendant simply admitted that it owed the plaintiff a non-delegable duty of care at law and pursuant to contract [while alleging that any duty implied was limited to a duty to exercise reasonable care to minimise foreseeable risks of injury associated with the plaintiff’s employment duties and that any such duty was subject to the provisions of Chapter 5, Part 8 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (Reprint 5c) (“WCRA”)].

[20]
As to the specific allegations made in the amended statement of claim in paragraph 3 by the plaintiff against the first defendant, the first defendant admitted them entirely. The duties there outlined were alleged to have arisen by reason of the “relationship of proximity” and “the degree to which (the first defendant) controlled the system of work undertaken” by the plaintiff at the mine site. They were said to generate a duty of care in eight separate ways. Those ways may well be seen to all fall, at least in substantial part, under the rubric of the first way (namely, to take reasonable care to prevent a reasonably foreseeable risk of injury to the plaintiff in respect of his work at the mine site), though the tenor of the expert evidence relied on by the plaintiff stressed specific safety aspects of the haul road and the cross-examination by the plaintiff’s counsel stressed, as well, the alleged communication faults. Also, flowing from such matters is the alleged negligence of the driver of rear dump truck 1152.

[21]
It was identified in Suncorp Staff Pty Ltd v Larkin [2013] QCA 281 that an employer’s duty of care (by reference to Czatyrko v Edith Cowan University [2005] HCA 14) is accepted to be a non-delegable duty “to take reasonable care to avoid exposing (the employee) to unnecessary risks of injury”, noting that that duty could “be accommodated within the duties pleaded” in the relevant statement of claim there: at [21]. As amplified in Vincent v Woolworths Ltd [2016] NSWCA 40, by reference to the same High Court authority, there is “a non-delegable duty to take reasonable care to avoid exposing (the employee) to unnecessary risks of injury, requiring methods of operation to be devised or safeguards to be provided where there was a real risk of injury, even one arising from the employee’s ‘thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work’”: at [46].

[22]
As Vincent then went on to examine, whilst the description of the employer’s duty of care given in Czatyrko requires the employer to take account of the possibility of inadvertence or thoughtlessness by the employee, that does not mean that the employer is not entitled to expect that the employee will exercise care in carrying out straight forward activities: at [49]. That approach was illustrated by reference to the authoritative text of Glass, McHugh and Douglas, The Liability of Employers, 2^nd ed, The Law book Company Ltd, 1979 which stated that, for some cases at least, there will not be much scope for alleging the necessity for a system where it is a case of casual or isolated tasks of a simple character which do not involve any real risk if ordinary care is exercised: also at [49]. With specific attention to the duty to warn an experienced employee, in McLean’s Roylen Cruises Pty Ltd v McEwan (1984) 58 ALJR 423 the circumstances there led to Gibbs CJ noting that “(i)t is not reasonable to expect that the employer of an experienced deck-hand should be obliged to warn him of a danger which is obvious, and of which he is in fact already fully aware, unless there is some circumstance that indicates that a warning is necessary”: at 428.

[23]
In explaining the position of an employer in commonplace labour hire arrangements, South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 held that the duty of the employer, although described as “non-delegable”, is not an obligation to ensure safety of work but, rather, is an obligation to take reasonable care to avoid exposing a worker to unnecessary risk of injury, with the scope of that obligation varying depending on the nature of the working environment: at [117]. Concerning the giving of instructions, as noted in that context, although in that case there had been no visit by any representative of the employer to inspect the premises upon which the plaintiff was to carry out his duties, on the other hand there was no aspect of the physical layout of the premises which could be held to give rise to any injury and, had the system of work been explained, it would not have included the particular scenario that led to the actual injury: at [118]. It was held that, accordingly, any steps reasonably expected of the employer would not have given rise to the need for further instructions: also at [118].

[24]
As further explained in Gazis – although, as just noted, the employer there was held to be under a duty, that duty was not to provide the safe system of work alleged but, rather, a duty to take reasonable steps to ensure that the plaintiff was not exposed to unnecessary risks of injury – if an inspection was identified as an appropriate step required, since such an inspection would probably not have identified the particular risk which materialised, the proper conclusion would be that, while a duty was owed and that there was a breach of it (because the employer took no reasonable steps to investigate the working environment in which the employee was placed “on a semi-permanent basis”), the breach was nevertheless not causative of the harm which eventuated because the risk would not have been identified on any reasonable inspection: at [122].

[25]
As for the first defendant, Vincent instructs that where a person in the position of the first defendant takes such control as it clearly has in this case, the totality of the relationship between the parties and the ability of the occupier to control the activities which are conducted on its premises are both required to be considered in the determination of the duty, with such duty in that case being one of “a duty to exercise reasonable care to avoid unnecessary risks of injury arising out of the ongoing conduct of (the occupier’s) operations while (it was) performing (its work)”: at [18]. It remains to be acknowledged that the particular duty was framed in terms of an analogue to the Civil Liability Act 2003 (Qld).

[26]
Turning to an example of the duty cast on a hirer such as the first defendant with respect to mining operations, in Roche Mining Pty Ltd v Jeffs [2011] NSWCA 184 the New South Wales Court of Appeal was concerned with whether a mine operator breached a duty of care to a plaintiff who was an employee of a labour hire company. McColl JA, with whom Tobias AJA expressly agreed, held that the content of the duty of care owed by the operator which was in charge of running the Wambo Coal Mine and which owned the plant and equipment used at the mine was, as the primary judge determined, a duty “to take reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury”, adopting Brennan J’s formulation in Stevens v Brodribb Sawmilling Co Pty Ltd (citation omitted): at [62]. As was then noted, this is a “less stringent duty than that owed by an employer to employees”: also at [62], citing relevant appellate authorities. McColl JA stated that such a duty recognised, amongst other matters, the operator’s role in operating the coal mine, its responsibilities under the Coal Mines Regulation Act 1982 (NSW), its control of the system of work and its ownership of the plant that the plaintiff was required by it to operate: also at [62].

[27]
Additionally, in Jeffs, McColl JA, again referring to statements by the trial judge – which were held to be stated “correctly in my respectful view” – confirmed that the content of the duty of care had to be determined by reference to the facts of the individual case: at [63], referring to Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. Furthermore, she commented that it is necessary to guard against the danger of allowing the cause of the injury to determine the content of the duty without focusing on all relevant circumstances, including the relationship between the parties: again at [63], with particular reference to Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11. Bearing all those principles in mind, it was held that the primary judge “did not err in formulating … the content of (the operator’s) duty of care as being to provide the (plaintiff) with a safe system of work and safe plant with which to carry out his work”: also at [63]. Although it dealt with the position of a hirer of a relatively unskilled labourer, it is recognised that in TNT Australia Pty Ltd v Christie & Ors (2003) 65 NSWLR 1 the overall relationship was described, as between the hired employee and the brewery factory operator as “indistinguishable from that of employee and employer”: at 9 [41], per Mason P.

[28]
Although Jeffs was determined pursuant to provisions of legislation analogous to Queensland’s Civil Liability Act 2003, there was no indication there that any different principles from those just outlined would apply in any event, particularly considering that almost all of the cases considered were before the advent of this uniform legislation. Concerning a breach of duty, again acknowledging the overlay of the relevant legislation, McColl JA held that it was for the plaintiff to lead evidence of facts sufficient to prove, directly or by inference, on the balance of probabilities, that not only did the operator owe him a duty of care but also that the duty was breached and that the breach caused his injuries, thus having to establish that a reasonable person in the operator’s position would have foreseen that its conduct involved a risk of injury to the plaintiff, or to a class of persons including the plaintiff, and then to establish what a reasonable person would have done in response to that risk: at [70] relying upon Kuhl and upon aspects of Wyong Shire Council v Shirt (1980) 146 CLR 40. Lastly, concerning general principles, she held that, in evaluating the plaintiff’s case, the primary judge had to be careful not to assess the position with the benefit of hindsight: also at [70], with reference to Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330. Importantly, “the duty is, of course, not absolute”: see Hayne J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, at 98 [276] (though directly expressed concerning the employer’s duty, it is equally applicable to any other duty relied on here).

[29]
Jeffs also decided, concerning causation and relying upon pre-legislation cases, that it is necessary for the plaintiff to establish that, as a matter of direct evidence or legitimate inference, more probably than not the action identified as that which ought to have been taken “would have prevented or minimised the injuries the (plaintiff) sustained”: at [80]. As reiterated recently in Woolworths Ltd v Perrins [2015] QCA 207, “(i)n order to establish the necessary causal link between any arguable negligence on the part of the employer and the injury suffered”, “it is necessary to show that the measures that it is said the employer failed to adopt would protect the employee from injury, not ‘could’ or ‘might’”: at [173], additionally referring to Gibbs CJ in Turner v State of South Australia (citation omitted) to the effect that “the safety measures would have been effective and that (the employee) would have made use of them if available”.

[30]
As reiterated recently in Issa v Australian Alliance Insurance Company Ltd (t/as Shannons Insurance) [2016] NSWSC 1320, causation in the general law is a question of fact to be decided by the application of common sense to the facts of the case: at [69], relying upon March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 and Bennett v Minister of Community Welfare (1992) 176 CLR 408. Under the WCRA, s 305D (with s 305E) casts the onus on the plaintiff to establish both factual causation (the “but for” test) and “scope of liability” causation. With a collision such as this, there is little (if any) difference.

[31]
Concerning the vicarious liability alleged in paragraph 9 of the amended statement of claim (that is, that the first defendant was vicariously liable for the conduct of Mr McClintock in “parking” his truck and “failing to advise other drivers” via the VHF radio system that he had done so), Kelly v Bluestone Global Ltd (In Liq) [2016] WASCA 90 is of assistance. Although the case was primarily concerned with liability of the corporate entity which conducted the labour hire business for the alleged negligence of its employee in injuring another employee (although this time being the mine operator’s employee), the case does canvass some general principles concerning vicarious liability. As stated by McLure P, vicarious liability is a liability of one person for the tort of another, with that liability being strict: at [55]. The relationship of employer/employee is one in which, prima facie, the employer is vicariously liable for the tortious acts of its employees in the course of their employment: also at [55]. Such liability is not in dispute in this case, since it has been expressly admitted by the first defendant that Mr McClintock was its employee and that it is vicariously liable for the conduct of such an employee, although it denied that the factual circumstances generated any such vicarious liability.

[32]
Since this case against the first defendant is not being decided pursuant to the Civil Liability Act, the general common law principles apply. No different analysis results after the recent reconsideration of vicarious liability in Prince Alfred College Inc v ADC [2016] HCA 37. There, the plurality was concerned with “wrongful” intentional, criminal acts by an employee, but generally remarked that such “liability is imposed despite the employer not itself being at fault”: at [39]. A requirement that the wrongful act “be committed in the course or scope of employment” was held to be one that “remains a touchstone for liability”: at [40]-[41]. Here, Mr McClintock’s acts would qualify – but the issue is whether they were, relevantly, wrongful as “negligent acts”: at [39].

Duty of a following vehicle

[33]
In determining the relevant facts of this case insofar as they impinge on the content of the duty of care, any breach of it and any causative loss flowing from a breach, it is important to note what the courts have held concerning the responsibility of a following driver. While the different circumstance of driving on a public road was the concern of these cases, it is not true that there is either some modified excusal or midway position pertaining to the haulage operation considered here, despite it being important to note the context that the devised system of work imposed on the drivers. But that context did not allow drivers to pay little heed to the undoubted application of special attention being necessary when one is the following driver, as neatly exemplified by the minimum distance separation instruction.

[34]
In Freeleagus v Nominal Defendant [2007] QCA 116 Keane JA, on behalf of the court, addressed the issue of whether the plaintiff in question had a “substantial opportunity to avoid the collision and, in consequence, a responsibility to do so”: at [18]. He noted that in Rains v Frost Enterprises Pty Ltd [1975] Qd R 287, the Full Court of the Supreme Court of Queensland had set aside a 60/40 apportionment of liability by a trial judge made against the driver of a vehicle who pulled out from the side of a road at a very slow speed, in favour of the driver of a following vehicle which collided with the leading vehicle while overtaking it, observing that the Full Court had concluded that the following driver “was wholly responsible for the collision”: at [19]. In considering the leading judgment given by Dunn J, Keane JA (at [21]) extracted the following passages from it:

“I have queried whether His Honour correctly appreciated the nature of the ‘special relation’ between ‘leading car’ and ‘following car’ on a quite long straight stretch of road, in conditions of good visibility. The essence of that relation is that the follower is in a better position than the leader to observe, and thus is able to make a choice between creating a hazardous situation (as, by failing to steer clear) and a safe situation (as, by steering well clear, or by stopping, if he is in doubt as to the leader’s intentions).

…

In my opinion, it is clear in the instant case that His Honour either did not correctly appreciate the relation or did not give it due consideration, because he concluded that it was the duty of the driver of the (leading) vehicle to give ‘some warning’ to overtaking vehicles. I am, with respect, unable to understand why a slow-moving yellow truck travelling for a significant time in view of an overtaking vehicle should warn that vehicle that it is travelling slowly, or what an appropriate warning system would be. ….”. (emphasis added)

[35]
Keane JA then stated that one “must not overemphasise the responsibility of the following driver or the importance of that driver’s opportunity to avoid the risk created by the carelessness of another”, though adding that it “must be emphasised, of course, that cases of negligence in the management of motor vehicles must always be resolved on their own particular facts”: at [23].

[36]
Recently, in Smith v Randall & Anor [2016] QSC 191, Applegarth J stated, with reference to authorities that I have just canvassed, that the driver of the following vehicle is in a “better position than the leader to observe certain matters”, referring to that necessary concern (just expressed) about how various matters bear lesser or greater emphasis: at [75].

Credibility

[37]
Inevitably, the determination of credibility, particularly of the plaintiff, will have a significant bearing on the determination of what actually occurred in the collision.

Plaintiff

[38]
The plaintiff acknowledged that, concerning an interview at work on 11 January 2011 (being on the day after, at about 6 pm), he stated to investigators that he could not “explain why” he “didn’t see” the leading truck “earlier” and that he had “continually asked himself why he didn’t”, “but can’t explain”.

[39]
The plaintiff admitted that he did say at that time that he “didn’t realise why I wasn’t looking at the truck until – as I said, going over it at a later date”. In cross-examination when the question was put to him again that, at that interview time, he could not explain why he did not see the truck earlier, he responded that “No. I couldn’t. I couldn’t realise at the time of the accident. No, I couldn’t.”

[40]
When pressed further about when he came to the realisation “that the reason for the accident is that you were looking down to the left as you’re driving around the corner”, he responded that “it was probably a week later when I was, again, going over – going through it over and over in my head” and, then, added “well, I kept trying to work out why I didn’t see him, but I hadn’t thought about the off-camber part of the road”, which, about that week later, he realised “that that was there”.

[41]
Setting the context for that series of questions was an earlier question in cross-examination. There, it was asked of him whether he accepted that it was true that he did not have a “full recollection” of the events prior to the accident. He responded, “not the last – tiny last bit of it, no.”

[42]
The defendants submit that the plaintiff engaged in a faulty, if not substantially untrue, reconstruction of what occurred, starting from the “established” premise about the absence of a full recollection. For his part, the plaintiff seeks to explain the suddenness of what occurred - although conceding that he was operating under normal conditions with no distractions - by stating that he had to focus on the negative camber of the haul road as he was making the right-hand turn manoeuvre due to “the fact that it used to drag the trucks towards it” and that the reason he “had to focus on it” was that “otherwise it would just drag you into the rill”. As he expressed it in examination-in-chief,

“as I said, I looked up from the rill and [Mr McClintock] was stopped, and from therein I just, as I said, went into overdrive trying to get – trying to pull my truck up.”

[43]
The one thing that is obvious from consideration of that evidence is that the plaintiff conceded that he was not looking in front of him at all as he was traversing the area of the right-hand turn, even taking his evidence at the highest for his case. It was not explained how, even if fleetingly every second or so, a glance to the front could not have been made, especially when, even if he was travelling at 29 km/h – which he was not until after the service brake had been applied for 1.5 seconds (see later) - that would have meant his truck was covering 8 m/sec without knowing what was in front of him. And it was also not explained how, from his elevated left hand driving position, his exclusive attention had to be to his immediate left, rather than to the front and partially (at least) left simultaneously. His blaming at trial of Mr McClintock for “stopp(ing) without making a call” can be contrasted with his immediate post-accident response that he did “not blame the other operator in any way”. That blame also sits ill at ease with his responsibilities arising from his reconstruction of how the events occurred.

[44]
Noting that the onus is on a plaintiff to establish his case on the balance of probabilities, an objective appreciation of this rear end collision at the place and in the circumstances where it occurred (including no impediment to visibility) would lead to a reasonable inference, as the probable inference, that a lack of attention to what was ahead of him was a significant contributor to the accident occurring, if not the cause. Given, also, the plaintiff’s concession that there were normal conditions prevailing and no distractions, the delayed post-incident “recollection” about where the plaintiff’s exclusive “focus” was is difficult to accept, especially given the absence of supporting evidence for the need for any such an intense focus (even in light of Mr McClintock’s vague concession about “camber” concerns, dealt with later in these Reasons). Necessarily, to reject that as true depends upon an adverse finding of credibility and reliability on the plaintiff’s part.

[45]
I accept that if this focus was one that was, if not always, then at least as a common practice undertaken by the plaintiff at that particular place, it might be expected that he could recall that circumstance immediately post-incident, even though if, as he says (and I accept) he was still in pain at the time of that interview. Although sent for a CT Brain scan with IV Contrast later on, no abnormality was detected and no expert evidence was called by the plaintiff to explain any, temporary or otherwise, loss or even partial impairment of his memory. Thus, I do not accept that the “explanation” he gave for inattention to observing what was in front of him was due to his exclusive “focus” on the rill. No other driver gave evidence of any similar experience or the need for such a focus. In particular, Mr McClintock, the leading driver, gave evidence that he was not himself aware of any camber in the road at that time at that place, although this other driver did concede that he had experienced the haul road being “off-camber” in “wet conditions” or if the vehicle was “loaded”, adding though that on this occasion the road was dry (and the evidence was that the truck had just been unloaded). This was in circumstances where Mr McClintock did not even identify that “experience” with this particular area of the haul road. Accordingly, there is much that is either inconsistent or illogical or inexplicable (or some or all of those) in the plaintiff’s version of events such that I have considerable doubt about the overall reliability of the plaintiff’s account of the reasons of how and why this collision occurred. I am left, therefore, unconvinced that he is an accurate historian in a way that I can place confidence in his version of what occurred in those times which fall immediately prior to the collision itself. His case, therefore, proceeds on a circumstantial basis, at least in part, for that episode of the events.

Mr McClintock

[46]
This witness’s evidence, perhaps unsurprisingly, was of short compass. He was adamant that he had not stopped but simply had slowed down to approximately 3 km/h to 5 km/h, which he described as a “walking pace”. In cross-examination, he constantly denied that he had stopped. Mr McClintock did not attempt to estimate the speed of the plaintiff’s vehicle as it approached from behind – sensibly given the suddenness of the incident that occurred and his momentary observation only of that vehicle in his truck’s mirror - and gave coherent and rational answers to questions asked of him. An example of that was that, when he was asked about why he slowed to that pace, he said that he had seen the “light vehicle” coming out of the pit and had seen the interaction down the bottom with the two trucks down there so that there was “no rush for me to go down there” as it “was an open area” and “the vision was good” and that, therefore, he concluded that he “found I was safe in doing what I was doing” as he approached “a congested area”.

[47]
Viewing Mr McClintock’s evidence in totality, and taking into account the objectively established circumstances, including the state of the haul road (which I accept was not wet, although it had been watered down for the purposes of dust suppression about a half an hour earlier), I find that the evidence of Mr McClintock is both credible and reliable.

[48]
I will, nevertheless, make one further remark. When the cross-examination of Mr McClintock was almost finished, it was put to him that when he went over to assist the plaintiff he, on a number of occasions, stated “What have I done? What have I done?” Unsurprisingly, when objection was taken to it, especially when, as was put by senior counsel for the defendants, “those words didn’t fall from the plaintiff’s mouth and, had they done so, I certainly would have cross-examined him upon it because the plaintiff said completely the opposite,” I refused leave to recall the plaintiff to have this aspect of the evidence further examined. Counsel for the plaintiff responded that he would not “cavil with the ruling”. In making that ruling, and the following ruling about another conversation alleged to have occurred “some two or three days later” that was “certainly not covered in evidence-in-chief”, I took the view that, besides offending the rule in Browne v Dunn (1829) 57 ER 909, an “apology” which is simply a comment by a person who was hit from behind is “evidence” which is “almost meaningless”. This was based upon the comment by Gleeson CJ in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 where he noted that a statement by a driver of a motor vehicle to an injured passenger that, “I am sorry, I let you down” was a statement that “may not mean much, or anything”, although it may be very significant if the driver says “I am sorry, I was going too fast” (with the latter admission being potentially significant in circumstances where there was no independent evidence that the driver was travelling at an excessive speed or where the injured passenger was unable to assess the speed of the vehicle): at 327 [25].

Other witnesses

[49]
There is no other witness whose credibility or reliability was seriously challenged.

Expert evidence

[50]
On day two of the trial, objections were taken by counsel for the defendants to the reports of two mechanical engineers, Mr Scott Boyd and Dr Frank Grigg, on the basis that they were not admissible as expert reports. The report of Mr Boyd was dated 30 November 2015 and that of Dr Grigg of 9 February 2016. They were reports prepared, respectively, for the plaintiff and the defendants.

[51]
In the ruling that I made on that day, I concluded that those reports should be substantially redacted since those redacted portions reflected the expression of opinion on matters outside the expertise of each witness in terms of his training, study or experience. The remaining parts of each report then depended upon evidence which was not, at that time, yet established, principally with respect to the speed of the plaintiff’s truck and the timing of the application of the “service brake”. Although some suggestion of what those things might be was contained in a report prepared, after investigation, by the first defendant, I also ruled that report inadmissible under the relevant statutory section relied upon (namely, s 84 of the Evidence Act 1977).

[52]
The consequence of that was that I then granted an adjournment at the end of day three to the plaintiff in order for the plaintiff to seek to obtain admissible material which was foreshadowed to be available from Hitachi Construction Machinery (Australia) Pty Ltd. There was evidence that the first defendant had made some limited use of Hitachi sourced software which was installed on the plaintiff’s truck in its own investigation.

[53]
When the case resumed on day four, relevant documents had been obtained from Hitachi which became Exhibits 16 and 17. They were reports addressed to the plaintiff’s solicitors. Additionally, a note of a conference held by the defendants’ legal representatives with Mr Tocker, Group Service Manager – Mining for Hitachi (who was the Hitachi author of both reports) became Exhibit 18. A further report of Dr Grigg dated 17 November 2016 was also admitted (Exhibit 19). Although both the original reports of Mr Boyd and Dr Grigg referred to measurements said to be taken as a result of the investigation by the first defendant of “skid marks” made on the surface of the mine haul route road, no evidence was led by anyone who measured, examined or otherwise even observed those skid marks at the relevant time. It needs also to be noted that Mr Boyd, at page 6 of his first report, specifically referred to those skid marks in cautious terms which stated that the relevant investigators “measured tyre marks which they interpreted to be skid marks, of between 16.6m and 18.5m length” (emphasis added). Then as Mr Boyd went on to note, he had not been provided with photographs of sufficient detail or composition to be able to comment whether they “were” skid marks “for their entire length” and that, for the purposes of his report, he had “assumed that the interpretation of the marks was correct”. As I will hold in this case, that assumption has not been made good. For his part, Dr Grigg, at page 10 of his initial report, stated that, on information that he then had, there was an inconsistency between the length of the skid marks and the braking that occurred, expressing the view that he did not believe that this “could be as a result of the available friction being low but rather due to some aspect of the data recording system or with the way in which the skid marks have been interpreted”.

[54]
I am not satisfied that the available “objective” evidence which is based upon the Hitachi documents (and associated discussions), taking also into account the photographs (however limited they are in terms of forming any detailed conclusions) and the other evidence that I have accepted about the collision itself, demonstrate that the “skid marks” are accurate measurements of tyre marks made by the plaintiff’s vehicle on the relevant road surface at the material time for that length of up to 18.5 m for the reasons developed below.

[55]
The Hitachi documents, as analysed by both experts show that:

although the use of the service brake was the trigger for the measurements to be made after a 1.5 second delay, the “normal” method of braking with trucks such as that driven by the plaintiff on the material day was by the use of the retarder brake (which had been used by the plaintiff initially);
when braking, using the retarder brake, electrical energy arising from the motion of the truck acting through the motor (then operating as a generator) was dissipated into a resistance bank;
there are limitations on the extent of the effective braking that can be provided by the retarder brake, with Figure 1 in Dr Grigg’s second report showing that the “rimpull” (namely, the force available to retard the motion) was limited to a level of about 650 kN (approximately 65 tonnes) at speeds of up to about 20 km/h and then it decreased progressively such that at 30 km/h it was about 450 kN (45 tonnes);
the reason that the retarder brake was used as the normal means of braking was that it did not make use of components which wore out, such as the brake pads on disc brakes;
the retarder was active for 9.48 seconds before the relevant Hitachi readings began to be recorded;
those recordings only began after the service brake had been applied for 1.5 seconds (with the speed of the plaintiff’s truck having been more than 8 km/h);
if the service brake was applied for only a few milliseconds longer than the 1.5 seconds, the duration of the application would still be recorded as 2.5 seconds (which is why the recordings show that the service brake was “active” for “between” 1.5 and 2.5 seconds);
in the 1.5 seconds before the recordings began, the speed of the plaintiff’s truck was being reduced by the combined application of the retarder brake and the service brake, so that the speed was higher than the 28.97 km/h at which the truck was travelling when the event was begun to be recorded;
it can be inferred from the above information that the retarder brake was used for 7.98 seconds prior to the application of the service brake and, therefore, the speed at the commencement of the use of the retarder brake must have been somewhat higher than 28.97 km/h; and
the service brake tests on a truck of the same model (contained in Attachment 3 to the second report of Dr Grigg) simply established that the brakes on the plaintiff’s truck were of an appropriate safety standard.

[56]
A number of conclusions can be drawn from the relevant material which were not put in dispute by either expert. They include that:

the data does not provide an answer to the question of whether the retarder brake was still, or not, in use after the service brake had been activated for the 1.5 seconds;
at the time that the service brake was also applied, the retarder brake (which was stated to be a “powerful braking system”) was operating at or near 100% electric braking;
whilst the retarder brake was applied at or near 100% at the time the recording began, the data does not show whether the retarder brake was applied at a particular percentage (being from 5% to 100%) in the 9.48 seconds prior to that; and
because of the unknown actual effectiveness of the retarder brake, the speed of the truck during the initial 9.48 seconds cannot be accurately determined by the data.

[57]
Mr Boyd gave oral evidence concerning the “new” data. My overall impression of the evidence given by Mr Boyd was that, having in his initial report stated that the two main limiting factors affecting the ability of the truck to come rapidly to a halt were the performance of the braking system – which was finally not in dispute between the experts - and the available friction and, having reached an opinion in that report that the “available friction was 0.18” (see Section 5.4 of the report), he was reluctant to concede that general conclusion was wrong despite the additional data. It should be noted that he had finalised his earlier opinion by accepting the assumption that the “skid mark” length was 18.5m. His oral evidence at trial stuck rigidly to that “fact” of that “measurement”.

[58]
At trial, based upon that length of 18.5 m, Mr Boyd calculated that the length from the front wheels to the rear wheels was about 6m. Accordingly, on that basis he purported to draw an inference that the truck “slid” for at least 12.5 m. From that, he moved to the conclusion that, if the vehicle was travelling at 28.9 km/h at “the commencement of that skid”, the friction would have needed to be “less than 0.3 for it to have slid that far”. But it does not explain why a distance of 18.5 m (rather than 12.5 m) was “measured”, unless skidding had begun even earlier [which would be inconsistent with Dr Grigg’s reliance on torque reduction (discussed below)] or unless both the front and back tyres had made the one continuous skid mark between them – for which there is no evidence. Nevertheless, even if I am wrong in this understanding of this part of Mr Boyd’s analysis, it does not undermine any of the final conclusions that I reach about the unproven nature of the length of these markings on the road, as explained below.

[59]
Mr Boyd then referred to Table 1 in Dr Grigg’s second report. From that Table he extracted the reference to a coefficient of friction of 0.30 and noted that there would be, correspondingly, a remaining distance of 11.00 m in which to stop and, for a coefficient of friction of 0.25, a remaining distance of 13.20 m to stop. According to Mr Boyd, that supported the conclusion that he had reached about the 12.5 m. From that, he purported to reason that the haulage road should have provided a coefficient of friction “adequate for a truck’s brakes to decelerate in an effective way”. He explained that, in order for the truck to skid by locking up its wheels, the braking capabilities of the truck must exceed the available friction. After examining Attachment 3 to Dr Grigg’s second report, he stated that the relevant coefficient of friction relevant to the tests conducted for that attachment – which he opined was more accurately known as the “equivalent drag factor” – was, at minimum, at least 0.37 g. In response to questions from me, he agreed that there was “obviously” a coefficient of friction of some kind on the gravel haul road at the time of the collision but he then expressed the opinion that to generate that skid mark of 12.5 m meant that the friction was “quite low – unusually low and less than what the truck could achieve with its own brakes”, later acknowledging that his calculation showed that the truck “could have stopped in a shorter distance if it had a better road surface”.

[60]
One of the initial questions in cross-examination of Mr Boyd was directed towards considering the recorded data on page 2 of the second document in Exhibit 16. That referred to a “torque reduction” of 100%. Mr Boyd acknowledged that it would be his understanding that at the time that slice of information was taken the truck wheel was not skidding. Although counsel for the plaintiff later on took issue with Dr Grigg relying upon the same effective information in his evidence as an example of a breach of the rule in Browne v Dunn, it is clear from this question that Mr Boyd’s attention was drawn, at least indirectly, to an associated part of what Dr Grigg relied upon (namely, that there was no skidding at that moment).

[61]
The significance of that piece of data was, as I have stated earlier, that it became common ground that during the application of the service brake for that 1.5 seconds (because the retarder brake was effective for at least 1.5 seconds of that time) there was no skidding. Mr Boyd made the point, though, that the system did not show “how much” the service brake was applied, “just that the pedal was depressed to some extent”.

[62]
Given the undoubted urgency that would have faced the plaintiff at the time that he came to apply the service brake, it is reasonable to infer that the most probable inference is that he caused it to be depressed to a significant extent.

[63]
Mr Boyd took further issue with Table 1 as to the calculated speeds at the time the service brake was activated, based upon the “delay” in the time for the service brake to apply (being a reference to the “delay” factor appearing in Attachment 3). The difficulty, of course, about that is that neither expert was able to interpret that “system delay” data in any meaningful way for the purposes of this case. This is illustrated simply by the fact that for the same vehicle there was one delay of 0.50 seconds and a second one of 1.50 seconds, both without accompanying, or later, elucidation as to why (except that they measured results for different delays).

[64]
Mr Boyd acknowledged that the additional Hitachi data now meant that the coefficient of friction on the haul road in question was “not close to 0”, stating that the lowest that he tested it to be was “in the order of about 0.16” (which was not an answer to this specific haul road, but was simply the reading that he had obtained on “wet clay” on an unidentified mining site).

[65]
When he was then taken in cross-examination to one variable which could be “wrong”, being the measurement of the length of the skid marks, he indicated that could be so. He further accepted that when the plaintiff’s truck struck the leading truck, it may have caused “at the very least that tyre to lock – to skid”.

[66]
In cross-examination as to the photograph in his report noted as Figure 4, he accepted not only that his report stated that the “ramp material … appears relatively smooth” but that he would accept that a road such as that which that photograph appeared to show as relatively smooth may in fact have had “quite good grip properties”, though he added the rider that that would be so “(w)hen it’s dry”. On the assumption that it was dry, he stated that he would expect a coefficient of friction of 0.5 to 0.6, “perhaps”.

[67]
Lastly, when taken to Figure 5 in his report which showed, both on a tyre of the plaintiff’s truck and the roadway, striations consistent with skidding, he stated that it was an indication that the brakes (which included both the retardation brake and the service brake on the rear axle) “were sufficient to exceed whatever friction was there”.

[68]
Dr Grigg’s evidence began by him agreeing that the ramp material shown in Figures 5 and 6 of Mr Boyd’s report appeared “relatively smooth”. Following that, Dr Grigg stated that such a smooth surface can have quite a high coefficient of friction, particularly if it is dry. It should be noted, at this point, that such evidence is little different from that given by Mr Boyd (on certain “assumptions” put to him). Following that, when he was taken to the photograph (designated Figure 5 in Mr Boyd’s report), he stated that the striations on the tyre suggested that the coefficient was “fairly high” and that it “wasn’t the sort of thing you get if it was, say, 0.1 or something like that as a coefficient of friction”.

[69]
In the initial cross-examination, Dr Grigg accepted that there were two main limiting factors which affected the ability of a truck such as that driven by the plaintiff to stop, being the performance of the braking system and the available friction between the haulage road and the tyres. With respect to the former, he agreed that it was “a pretty efficient braking system”. When Dr Grigg was taken to the conclusions expressed by Mr Boyd (in Mr Boyd’s report at page 22) concerning the calculated “stopping distance”, he responded, quite correctly in mathematical terms, if the slope as a percentage was 0%, then the stopping distance was not the 14.7m calculated there by Mr Boyd on the basis of the slope being a -3.5%, but, rather, 17.52m. He did agree that if the skid marks were 18.5m then that would be “slightly” longer than the “recalculated” stopping distance just undertaken by him.

[70]
When, in further cross-examination, Dr Grigg was taken to “now what the data of the recording system has revealed”, he stated that the “logical explanation” for his concerns expressed at paragraph 18 on page 10 of his first report was “that there’s a problem with the length of the skid marks”, suggesting that the measurements of those skid marks were wrong. In later cross-examination, Dr Grigg explained that the reason why they were wrong was that it would mean that there was “a very low coefficient of friction”, adding that his basis for why that was unlikely (that is, that the coefficient could be as low as 0.2) was because it could not have left a skid mark of that length if it was doing only 28.97 km/h with that coefficient of friction and where there was a crash somewhere along the way that caused it to stop. Dr Grigg then stated that, while there was no doubt that the truck skidded at some stage, the question was to what degree it skidded (that is: what total length was it that it skidded?). Since Dr Grigg was satisfied that the wheels of the truck were still rotating when that speed measurement was taken – as exemplified by the “torque reduction” in the Hitachi documents showing 100% - he was left with what he described as “a very improbable braking deceleration rate beyond that point” and that “the only possible explanation” was, according, “that the length of the skid marks is not correct” (namely “it wasn’t all skidding over that distance”).

[71]
It was at this stage that Dr Grigg referred to the “torque reference” not just in terms of the 100% referred to earlier but in the associated data readings expressed in terms of Newton metres (abbreviated to “Nm”). From those specific readings, taking account of the radius of the wheel and the gear ratio, he opined that there was “about 50 tonnes of retardation compared with the weight of the truck being 180 tonnes” meaning that there was “a value of 0.28 as the rate of retardation”. Therefore, to “achieve” that “actual torque figure on the rear wheels” there needed to be “a coefficient of friction greater than that to be able to cause torque to be developed in the wheels” with the consequence that the coefficient of friction between the tyre and the road “could not have been less than 0.28”. Although Dr Grigg conceded that he did not address that specifically anywhere in his second report, it is clear that Mr Boyd had access to that report including specific figures which were highlighted in yellow. They appeared on a mere two pages before the much examined Attachment 3. And Mr Boyd had been taken to the “accompanying” 100% figures. Dr Grigg then added that, taking into account the application of the service brake on the retardation brake effect, “you can lock the wheels at some point after that reading was taken”, later adding that “somewhere between then and when the vehicle actually stopped, it crashed into the vehicle ahead”, whereas with a deceleration of 0.28 “it should have stopped much more quickly than the length of the skid marks”. [I interpolate at this stage that, even given that I had formed the preliminary view that the evidence as examined had met the function of the rule in Browne v Dunn – as discussed in Davis v Commissioner of Police [2016] QCA 246 at [34]-[36] – I would have also been open, if pressed, to entertain an application to recall Mr Boyd (though excused), but it was not sought].

[72]
In explaining how it was calculated that the length was 93.6 m before the service brake was applied (referable to Table 1 in his second report), Dr Grigg’s report stated that even with a coefficient of friction of 0.25 the plaintiff’s truck would have been travelling at 42.21 km/h (or 11.73 m/s) when the service brake was applied. That Table also showed that even with a coefficient of friction of 0.4 (which Dr Grigg’s second report says was “most” probable), the speed at the time of the application of the service brake would have been 50.16 km/h.

[73]
As Dr Grigg’s further answers in cross-examination revealed, the actual value of the retardation then being achieved was dependent upon how hard the retarder pedal was being pressed and then, later, how hard the service brake was applied, such that the values that are given in Table 1 in Dr Grigg’s second report were dependent on those figures as well as on the available coefficient of friction of the haul road.

[74]
My conclusion is that the approach of Dr Grigg was more convincing in that he recognised the many uncertainties that there were in the evidence available but that, where there was data from the Hitachi documents that was applicable, the use of that in the way in which Dr Grigg analysed it with respect to the “torque reference” figures made sense and gave a proper explanation as to why the measurements of the “skid marks” were either erroneous or, at the least, inaccurate. Where no witness was called either as to the making of such measurements (especially defining the length as made by each specified tyre) or, with the relevant expertise, to examine the nature of the road surface at the place of, and contemporaneously to, the collision, I am left with the problem exemplified in the decision of Callinan J in Fox v Percy (2003) 214 CLR 118, discussed in the decision of White J (as she then was) in Read v Nominal Defendant [2007] QSC 297: at [6]. As Callinan J had stated, “no court is bound to accept evidence of no probative value and evidence of slight probative value will rarely provide a foundation for any confident finding of fact, particularly if strong contrary evidence is available”.

[75]
The problem is that an apparent air of certainty is given to a factual matrix that reeks of uncertainty, thereby similarly encouraging experts to proffer opinions based upon assumptions which, on careful analysis and examination, prove unstable, if not at times quite demonstrably erroneous. It is my view that this has happened here and that Mr Boyd, in particular, despite the concessions he sensibly made about the photographs of the site (accepting that he had neither been to nor examined the site and the road material), persisted in expressing an opinion that sits uneasily with the factual conclusions that I have reached including the fact that the haulage route road at that point, though watered some 30 minutes before, was not wet and, as the photographs testify in an “on balance” way, was “smooth” and therefore, likely to have a coefficient of friction much greater than a surface such as ice or wet clay and more likely to have a surface, being dry, of a kind highlighted in red in Table 1 of the report of Mr Boyd. If, therefore, as I do, put the “skid marks” to one side as a “red herring” (using an apt descriptor of Dr Grigg), very little is clearly and accurately calculated (or even calculable) apart from the speed of 28.97 km/h at a time (when no skidding was occurring) of 1.5 seconds after the application of the second set of brakes (the service brake) with an unknown effectiveness, an unknown coefficient of friction, an unknown distance to be travelled before a collision of some (unknown) force.

[76]
Accordingly, doing the best I can from the material that is cogent, convincing and reasonably inferable, I do conclude, first, that there was nothing that satisfies me that the very general allegation that the first defendant failed to provide a safe place of work for the plaintiff by failing to provide a haul road surface that was effective for the purpose of stopping within a reasonable distance has been proved to the appropriate standard. On that finding, no further finding is necessary for any alleged breach as against the second defendant to visit, inspect and seek explanations for such a safe road (or even investigate the safety of that road) because, if there were to have been proved that there was such a breach, any breach lacked the necessary causal connection.

[77]
The second conclusion that I draw, on balance, from this consideration of the expert evidence is that the speed of the plaintiff’s truck at the time that he first applied the service brake, after (undoubtedly suddenly) realising the danger which was emerging immediately in front of him, was probably some 45 km/h to 50 km/h (or at least a rate which far exceeded the 30 km/h that the plaintiff had “guessed” his speed to be) which was too fast in the circumstances and a collision ensued.

Final conclusions on occurrence

[78]
I accept that the duties already discussed so far applied here to both defendants. At the real heart of the liability issue here are the general principles of causation, on both common law and statutory tests, and its earlier concomitant element of what a reasonable response of both defendants ought to have been. Mr Percival, an unchallenged witness as to credibility on this matter, stated that he had not even heard of a similar “head-tail” truck collision in his 36 years at the Callide mine, in circumstances where the evidence supported some 17 trips in a shift such as the plaintiff was doing that day. This goes both to the elements of foresight and reaction on the part of the first defendant. Therefore, I accept that the likelihood of a collision like this, at least on this haul road, was insignificant. But I do accept that a risk of injury was foreseeable and that such a risk was not insignificant. Thus, a reasonable response by both an employer, noting especially those things set forth in s 305B(2) of the WCRA, and a hirer of a driver such as the plaintiff would have been not to have required anything, in these circumstances, other than appropriate training (which was clearly given), a safe road (which the plaintiff has not proved to be unsafe) on which to stop in normal circumstances of operation and an effective communication system informing drivers of unusual or unexpected impediments to travel that were not otherwise easily observable from their high visibility driving positions. Even if both the first defendant and the second defendant were to be held to have failed to investigate the safety of that road, no causative link to any such breach has been proved.

[79]
At the time of the collision the plaintiff was a trained and experienced truck driver. He was undertaking a straight forward activity that he had already successfully done many times that day and many countless times before that. It was not disputed that the collision occurred while the following vehicle (the plaintiff’s) was still moving, despite both methods of braking in the plaintiff’s truck having been activated. It is also not disputed that the impact was significant. In fact, the plaintiff became trapped in his vehicle for some considerable time and there are photographs which show the general deformation of the plaintiff’s truck. In terms of general visibility, the plaintiff, in cross-examination, acknowledged that the visibility “wasn’t poor” at the time of the incident. Further, although it was not a direct answer, when it was suggested to the plaintiff that he could see the leading vehicle “easily from 400 metres away” along the haul access road, his answer was that he “could see the truck, yes”. There is no other suggestion in his evidence that there was any obstruction to his view at any time with respect to sighting the leading vehicle (driven by Mr McClintock). When it was further suggested to him that, because he had acknowledged that the rear dump trucks were both “massive”, it was “correct” that he had to try really hard “not” to see the leading vehicle from a distance of 400 metres away, he agreed.

[80]
With respect to the plaintiff’s understanding of the need to maintain a minimum safe travelling distance between haul trucks, while initially stating that he was taught it was three truck lengths, the plaintiff acknowledged that “anyway, 50 metres is about right, yes. That’s – that’s correct.”

[81]
When asked specifically how far he had been travelling behind Mr McClintock’s truck prior to the time of suddenly seeing it prior to reacting and further braking, the plaintiff stated that he “couldn’t be sure, to be honest” and that he would “only be guessing” – but he knew that the leading truck was “slowing” “to go over the crest, the same as we’d done a number of times earlier that day”. The “normal” use of the retardation brake, as discussed in the Hitachi documents, showed an applied “electrical braking” for 9.48 seconds before the relevant Event Code 2389 was triggered by the use of the service brake some 1.5 seconds earlier. Besides the braking referred to, the plaintiff did not know, at least in the immediate aftermath, whether he had applied the “emergency brake” (assumed to be the “service brake”) – but the Hitachi recordings prove he did (which was what he stated at trial, seemingly on the evidence of what he was told). He further stated that when he first was “conscious of the fact” of the leading truck, his truck “could have been 20 metres … (i)t could have been further”, having just stated that it “would have been” 20 metres away when he “first” “hit the brakes”.

[82]
Taking into account the expert evidence that I have earlier canvassed, I conclude that the plaintiff had given himself insufficient time to react, and stop, not only in minimum safe distance terms but also in creating the conditions that once he came to realise what was the distance between himself, as the following vehicle, and Mr McClintock’s vehicle, as the leading vehicle, he was then too close in order to stop his truck without a collision. Even with a strong application of the service brake (which I accept that he probably did upon that realisation), at least one cause was that he had earlier failed to keep a proper lookout (determined from a consideration of both the direct and circumstantial evidence discussed), for which, I have found, he received appropriate training. As to why he so failed, I do not accept that the severe undiagnosed sleep apnoea (discussed in an incidental way by Dr Akporhonor in the context of “any likely medical condition that could have contributed to (the) mine accident”, where the plaintiff stated his inability “to fully recollect” and his “not sleep(ing) well at night” – though he ascribed the latter to back pain) can be properly inferred to be the cause of him, for instance, falling asleep at the wheel, though it may in truth account in some way for his inattentiveness in failing to keep a proper look out, although that is not a finding open to me inferentially and, in any event, neither defendant “knew” of any such pre-existing “condition”. In the end, I am not satisfied that the plaintiff has discharged his onus of explaining what did happen in his driving cabin on that day as being consistent with keeping a proper lookout as the driver of the following truck and as a basis for findings of negligence of any kind against others.

[83]
The issue then arises as to whether, either as a consequence of alleged failures to have a system of communication which would have informed the driver of the following vehicle (such as the plaintiff) of variations from normal in the downward traversing of the haul road or to effect a better upgrading of the haul road so as to provide a higher coefficient of friction for breaking, the responsibility for what occurred is not only to be attributed to the plaintiff but also to one, or both, of the defendants. As for the latter, I have already concluded that I cannot find, on the evidence available, that the plaintiff has satisfied me of that alleged breach of duty. As for the former, there was an effective communications system provided. And there is nothing in the evidence which has convinced me that Mr McClintock ought to have been instructed (as a reasonable response by the first defendant, or pursuant to a duty to investigate the necessity for such by the second defendant) to communicate by (for instance) a VHF transmission that he was slowing to adjust to the evolving scene at the bottom of the ramp after being informed of the “light vehicle” traverse of the ramp in the opposite direction, particularly where the plaintiff accepted that he had told the investigators on 11 January 2011 that on returning from the tip area “trucks would stop halfway down the ramp” and that this “was at the discretion of each driver as to where they pulled up” (though asserting that “it wasn’t anywhere near where the accident was” and that “(n)o one had stopped there all day”). I find that the content of the earlier UHF call (which, on a careful analysis of his evidence, I accept was received by Mr McClintock when he was only half-way down the haul road route) is causally irrelevant since that would not have, on the evidence, changed any behaviour prior to the VHF communication. There was nothing identified which required any call where there was adequate visibility ahead, where slowing was an expected event on this section of the haulage route, and where appropriate training should have meant a safe distance between trucks was being observed.

[84]
I have found that the leading driver (Mr McClintock) did not stop by ceasing to move at a walking pace and there was nothing evidential that triggered a necessary response to audibly inform the following driver of what the plaintiff (as that driver), with an unimpeded view and keeping a safe distance behind, could himself clearly observe if not otherwise self-distracted where thoughtlessness, inadvertence and carelessness were already covered by the training (especially as to adequate separation of vehicles) in those circumstances. Correspondingly, there was no demonstrated vicarious liability because of the absence of any breach of duty Mr McClintock had to the plaintiff. In any event, I am not satisfied on the evidence that, even if such an informing communication had been made, the act “would” have led to any different outcome given the close proximity the plaintiff had allowed to develop between the two trucks.

Quantum

(A)
Medical evidence

[85]
The records of the Rockhampton Hospital (Exhibit 11) show that the plaintiff’s admission to the Emergency Department was short, being only some two and three-quarter hours long. The medical investigations undertaken generated a diagnosis of muscle contusion to both legs, a small laceration to the right hand and tenderness in the left knee on walking. I accept the defendants’ submission that there was, thus, no early indication of any serious injury.

[86]
Dr Pretorius, an Orthopaedic Surgeon, certified the plaintiff as fit to return to work for suitable duties between 2 April 2011 and 13 April 2011 and then fit to return to normal duties by 14 April 2011.

[87]
The only expert written medical evidence which was supported by oral evidence at trial was that given by Dr David Morgan, an Orthopaedic Surgeon. He prepared a report (Exhibit 2) dated 28 March 2014, having examined the plaintiff on 13 March 2014 and then a further report (Exhibit 2) dated 16 April 2014. In those reports he expressed the opinion that the plaintiff had a 4% whole person impairment. In his second report and when giving evidence at trial, Dr Morgan did not link any permanent exacerbation of the plaintiff’s pre-existing neck or lumbar degeneration to the incident. Also, in oral evidence given at trial, Dr Morgan stated that it was unlikely that any left ankle injury was sustained in the incident.

[88]
Focusing on those impairments which have a causal relationship with the incident as proved by evidence at trial, there would appear to be only: the left knee joint injury, resulting, I find on balance, from a soft tissue injury (at a 2% whole person impairment); and the right shin sensory loss (at 1% whole person impairment). I accept that the right shin injury is not significant, particularly since the plaintiff made no complaint of symptoms about it at trial. Additionally, with respect to the left knee, when the plaintiff was examined by Dr Akporhonor on 3 May 2011 he expressed no concerns then with that left knee.

[89]
In terms of the pre-existing degenerative conditions of both the cervical and lumbar spines, Dr Morgan’s evidence was that, although they were, respectively, the origin of ongoing symptoms in those regions, the incident was unlikely to have altered the natural course of the spondylosis in either.

(B)
Damages for pain, suffering and loss of amenities

[90]
Because of the different civil liability consequences concerning each defendant, it is necessary to determine two separate sums for this head of damage. For general damages at common law, I have noted Ibrahim v Myer Queensland Stores Ltd [1996] QSC 116 (Byrne J, as he then was), Morris v D J Matheson Pty Ltd & Anor [2004] QDC 406 (McGill SC DCJ), Pascoe v Coolum Resort Pty Ltd [2005] QDC 39 (Samios DCJ) and Wilkinson v BP Australia Pty Ltd [2008] QSC 171 (McMeekin J). All are different from this case and from each other, but I have attended to the import of each. On the basis of Dr Morgan’s evidence (taken as a whole) I, therefore, accept the defendants’ submission that the sum otherwise awardable should be in the order of $20,000.00, particularly when there was such a short admission to hospital, such a minor injury to the plaintiff’s legs and the lack of any causal relationship between the incident and the ongoing symptoms arising from the pre-existing degenerative conditions. Interest would be awardable on the whole sum, given the initial pain, suffering and distress and the very minor nature of the continuing symptoms.

[91]
As for the application of s 306O of the WCRA, as amplified by the Workers’ Compensation and Rehabilitation Regulation 2003 (Qld) (Reprint 4) (“WCRR”), I accept the submission of the second defendant that the correct characterisation is of a “minor lower limb injury” within Item 135 and having an ISV of no more than 4 (in a range of 0 to 10). On the application of the various tables, that would quantify general damages at $4,720.00. No interest is awardable on that: see s 306N(1).

[92]
The evidence given by the plaintiff at trial was that, although he was unable to perform his usual work for some time, he was paid his usual wages. As a result, he lost no wages from that “employment” resulting from the incident. Additionally, the plaintiff’s employment was not terminated but, rather, his fixed term contract, as extended after the time of the collision, expired on 28 April 2013 and he was not offered a new contract (a proposition the plaintiff did accept in cross-examination): see Exhibit 3. As for his state of functioning at that time, Dr Tan noted (in an entry dated 8 February 2013) that the plaintiff undertook jet skiing at about that time and the plaintiff accepted that he was capable of driving a tipper, and did so.

[93]
It should also be stated, though, that while he was still working before the expiry of his contractual term in 2013 the plaintiff suffered a flare up of his long standing low back problem. This was in November 2011 and it caused him to be absent from work. Any economic loss from the incident-based injuries is further removed by the extension of the accepted Offer of Employment effected on 3 February 2012 when the plaintiff had again returned to full capacity employment after his late 2011 “absence”. The opinion of Dr Morgan, set out in his supplementary report, was that the exacerbation of back pain in the performance of the plaintiff’s work was not related to the incident. Moreover, the report of Dr Michael South of 18 February 2016 (Exhibit 6) showed that the plaintiff had undergone problems both with his left shoulder and left arm for which symptoms of numbness, clawing and weakness have been noted in his left hand since early 2016.

[94]
Dr Morgan’s opinion concerning the relationship between the injuries and the incident led him to conclude that the plaintiff was capable of full time employment even after those incident related injuries in not only his former occupations as a machine operator or truck driver but also in the occupations of carpark or gate attendant. As the defendants’ written submissions point out, the opinion of Dr Morgan that a return to work as a concreter would probably prove to be unnecessarily provocative does not specify whether that was because of the plaintiff’s injuries from the incident or because of the constellation of all causes of incapacity. The plaintiff led no cogent evidence that the minor 2% impairment to his left knee itself has caused or has contributed to an inability to earn income or that any specific earnings would be relevant to the tasks that he could still do with that minor restriction.

[95]
The common law requirements to prove an award for economic loss are set out in Medlin v State Government Insurance Commission (1995) 182 CLR 1. They embrace the principle of compensation for a loss of earning capacity since it, more accurately than a loss of earnings, compensates a plaintiff for the effect of an accident on the “plaintiff’s ability to earn income” of which earnings “are evidence of the value of earning capacity but they are not synonymous with its value”: at 16.

[96]
As for the WCRA, the definition in s 306, somewhat indiscriminately, expresses “loss of earnings” as meaning, for past economic loss, that which is due to the “loss of earnings or deprivation or impairment of earning capacity” and, for future economic loss, that loss which is “due to loss of prospective earnings or the deprivation or impairment of prospective earning capacity”.

[97]
Accordingly, whether on the common law approach or that of the WCRA, there is no evidence overall which satisfies me, on balance of probabilities, that the plaintiff has any deprivation or impairment of earning capacity, or prospective earning capacity, much less such as to establish “loss of earnings” or “loss of prospective earnings” causally related to the incident, and he has not otherwise identified what loss of a chance could be measured. If for no other reason, the plaintiff’s constellation of other much more significant problems from his back, neck, shoulder and hand conditions have not been untangled in any way which satisfies me that there would have been any economic loss of any kind, even pursuant to the chance principles applicable under Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. It is acknowledged that the Court’s function is to assess this aspect on the whole of the evidence. On a consideration of the plaintiff’s involvement with drugs, illustrated in part by a conviction evidenced by the Verdict and Judgment Record (Exhibit 20) concerning 2 counts on indictment of producing and possession of a thing for use dealt with on 13 May 2015 in this Court, I do not find that, on the evidence before me, any consequential impact can be inferred which would affect the conclusions that I have reached about economic loss. No superannuation loss either would be awardable.

(D)
Special damages

[98]
The special damages paid by WorkCover are $4,549.84: see Exhibit 14. Those for special damages as a result of Medicare engagement of $77.75 have been proven, being for the X-ray of 25 January 2011: see, also, Exhibit 14.

[99]
The plaintiff has also made a claim for pain relief from the need to take Panadol and other pain relief medication. Besides there being no receipts for such purchases and no medical support for the Brufen prescription as applicable to the incident-related pain, it is also unclear as to why the plaintiff had at each time purchased the medication (that is, with respect to what pain he was then suffering and to what extent). The defendants concede that some small sum such as $100.00 (inclusive of interest) ought be allowed for this. I will accede to that but can find no basis for any future such loss given the high uncertainty of its continued relationship with the incident.

(E)
Gratuitous care and assistance

[100]
As for the general common law principles, I accept the written submissions of the defendants that the evidence led both by the plaintiff and his son, Mr Ty House, is so contradictory in its nature and so vague in its overall effect that I am not satisfied, on the balance of probabilities, that there should be any award for domestic assistance. There is, additionally, in the medical evidence no support for any such award because, although Dr Morgan gave an opinion that there might be a need for some help in the limited spheres of climbing ladders, cleaning leaves from gutters or moving branches from elevated locations, there was no evidence from either the plaintiff or his son that any assistance was asked for or given in respect of such tasks. Given the identified comorbidities, these matters needed to be untangled before any acceptable basis could be established. Moreover, no rates were identified for any of the tasks in question.

[101]
As for the WCRA, the provisions of s 306H prevent any award being made where there is, as here, no proof of a payment for any services within the meaning of s 306D.

Schedule of damages against first defendant

[102]
From the matters canvassed so far, the following schedule reflects the applicable total of the otherwise awardable damages under the various heads of damage.

Item 1 General damages $20,000.00

Item 2 Interest on general damages

(5.75 years at 2% per annum) $ 2,300.00

Item 3 WorkCover special damages $ 4,549.84

Item 4 Medicare expenses $ 77.75

Item 6 Expenses for pain relief $ 100.00

Total $27,027.59

Schedule of damages against second defendant

[103]
As a result of the application of the various statutory provisions under the WCRA, the otherwise awardable damages, in total, are as follows:

Item 1 General damages $ 4,720.00

Item 2 WorkCover expenses $ 4,549.84

Item 3 Medicare expenses $ 77.75

Item 4 Pain relief medication $ 100.00

Sub-total $ 9,447.59

Less WorkCover refund $ 4,549.84

Total $ 4,897.75

Contributory negligence deductions

[104]
From the conclusions that I have reached, it is unnecessary – and impossible (since I have concluded that there is no responsibility in either defendant) – to determine, either under the common law or under the WCRA, contributory negligence.

[105]
But if contributory negligence were to be found, deductions would be required to be made from those totals contained in those two schedules. With respect to the second defendant, that would be before the WorkCover refund deduction.

Contribution between defendants

[106]
This was an issue that I raised during oral submissions. It was common to both sides that contribution was not something that I need to determine in this proceeding.

Summary

[107]
Because I have found that the plaintiff has not discharged his onus in establishing liability against either defendant, there will be judgment for each defendant against the plaintiff.

[108]
Because issues will undoubtedly arise about costs, I will give each party 7 days from the handing down of the reasons for this decision to file written submissions on costs by 4.00pm on that day.

Editorial Notes

Published Case Name:
House v Anglo Coal (Callide Management) Pty Ltd & Anor
Shortened Case Name:
House v Anglo Coal (Callide Management) Pty Ltd
MNC:
[2016] QDC 303
Court:
QDC
Judge(s):
Dorney DCJ
Date:
29 Nov 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited List of Cases Cited by this judgment

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Browne v Dunn	(1829) 57 ER 909	2 citations Jump To Cite 1 - (1829) 57 ER 909 Cite 2 - (1829) 57 ER 909
Crimmins v Stevedoring Industry Finance Committee	View on:JADE(1999) 200 CLR 1	2 citations Jump To Cite 1 - (1999) 200 CLR 1 Cite 2 - (1999) 200 CLR 1
Czatyrko v Edith Cowan University	View on:JADE[2005] HCA 14	2 citations Jump To Cite 1 - [2005] HCA 14 Cite 2 - [2005] HCA 14
Davis v Commissioner of Police	[2016] QCA 246	2 citations Jump To Cite 1 - [2016] QCA 246 Cite 2 - [2016] QCA 246
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Ibrahim v Myer Queensland Stores Ltd	[1996] QSC 116	2 citations Jump To Cite 1 - [1996] QSC 116 Cite 2 - [1996] QSC 116
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Malec v J C Hutton Pty Ltd	View on:JADE(1990) 169 CLR 638	2 citations Jump To Cite 1 - (1990) 169 CLR 638 Cite 2 - (1990) 169 CLR 638
March v E & MH Stramare Pty Ltd	View on:JADE(1991) 171 CLR 506	2 citations Jump To Cite 1 - (1991) 171 CLR 506 Cite 2 - (1991) 171 CLR 506
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Medlin v State Government Insurance Commission	View on:JADE(1995) 182 CLR 1	2 citations Jump To Cite 1 - (1995) 182 CLR 1 Cite 2 - (1995) 182 CLR 1
Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor	View on:JADE(2000) 205 CLR 254	2 citations Jump To Cite 1 - (2000) 205 CLR 254 Cite 2 - (2000) 205 CLR 254
Morris v D J Matheson Pty Ltd	[2004] QDC 406	2 citations Jump To Cite 1 - [2004] QDC 406 Cite 2 - [2004] QDC 406
Pascoe v Coolum Resort Pty Ltd	[2005] QDC 39	2 citations Jump To Cite 1 - [2005] QDC 39 Cite 2 - [2005] QDC 39
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Rains v Frost Enterprises Pty Ltd	[1975] Qd R 287	2 citations Jump To Cite 1 - [1975] Qd R 287 Cite 2 - [1975] Qd R 287
Read v Nominal Defendant	[2007] QSC 297	2 citations Jump To Cite 1 - [2007] QSC 297 Cite 2 - [2007] QSC 297
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Smith v Randall	[2016] QSC 191	2 citations Jump To Cite 1 - [2016] QSC 191 Cite 2 - [2016] QSC 191
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House v Anglo Coal (Callide Management) Pty Ltd[2016] QDC 303