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Millard v RI-CO (2004) Pty Ltd (In liq)[2014] QSC 79

Millard v RI-CO (2004) Pty Ltd (In liq)[2014] QSC 79


SUPREME COURT OF QUEENSLAND

  

CITATION:

Millard v RI-CO (2004) Pty Ltd (In liq) [2014] QSC 79

PARTIES:

NOEL ROBERT MILLARD
(plaintiff)
v
RI-CO (2004) PTY LIMITED ACN 108 253 589 (In liquidation)
(defendant)

FILE NO:

51/09

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 April 2014

DELIVERED AT:

Brisbane 

HEARING DATE:

4, 5, 6, 7 March 2014

JUDGE:

Ann Lyons J

ORDER:

Judgment for the defendant

CATCHWORDS:

EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – INJURY OCCURRING IN THE COURSE OF EMPLOYMENT – whether the plaintiff was in the course of his employment when he crashed a Franna crane hired by his employer into an embankment on a public road – whether the defendant company had a duty to warn the plaintiff of the dangers of driving a Franna crane on a single-lane public road

Workplace Health and Safety Act 1995 (Qld), s 28

Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349; (2005) 79 ALJR 839

Kondis v State Transport Authority (1984) 154 CLR 672 [1984] HCA 61; (1984) 154 CLR 672

Williams v Mount Isa Mines Limited [2000] QSC 161

COUNSEL:

M Horvath for the plaintiff
R A I Myers for the defendant 

SOLICITORS:

MacDonald Law for the plaintiff
Hede Byrne & Hall Solicitors for the defendant

The issues

  1. Noel Millard worked as a construction supervisor for an engineering and construction company at the Acland Mine near Oakey, Queensland. On 9 February 2007 he lost control of a 20 tonne crane as he was driving along Murphys Creek Road outside Toowoomba and was seriously injured. He was unable to work for more than a year and suffered significant economic loss as a result of his injuries.
  1. The question to be determined in this case is whether he was injured as a consequence of the construction company’s negligence or as a result of a breach of an implied term of his employment with them? To answer that question it is necessary to ascertain whether Millard was in the process of returning the crane to Brisbane as a consequence or in the course of his employment or whether he was driving the crane to his rural property at Murphys Creek for reasons unrelated to his employment. There is no doubt he drove directly from his workplace en route to his home but was he intending to travel on to Brisbane to return the crane to the hire company?
  1. If he was injured as a consequence of his employment, the next issue to be determined is the quantum of his loss. Accordingly, both liability and quantum are in issue.

Background

  1. Millard is currently 66 years old and from 9 May 2006 until 15 March 2007 he worked as a construction supervisor for the engineering and construction company RI-CO (2004) Pty Limited (the defendant) at the Acland Mine Site when RI-CO was involved in the commissioning of a coal processing plant at the site. RI-CO has subsequently gone into liquidation but Millard was given leave to proceed on the first day of trial.
  1. On Friday 9 February 2007 at around 5pm, Millard was driving a 20 tonne 2004 model Franna AT20 crane with Victorian registration (the Franna) along Murphys Creek Road outside Toowoomba when he lost control of the vehicle and it collided with the embankment on the side of the road. He had all the appropriate qualifications and accreditation to drive such a vehicle. As a result of the accident he sustained serious injuries including a closed head injury, facial fractures, a fractured heel and a fracture to his thoracic spine.
  1. Millard alleges that the injuries were the result of RI-CO’s breach of the terms of its contract of employment, and/or RI-CO’s negligence. He argues that his injuries occurred in the course of his employment because he was required by RI-CO to return the Franna to the hire company depot in Brisbane. Millard argues that RI-CO was negligent or in breach of its contract of employment by: (a) requiring or permitting him to drive the Franna by road when it knew or ought to have known of the unreasonable risks and dangers of injury in do so; and (b) failing to warn him of the risk inherent in driving the Franna on the road. The essence of Millard’s claim is that his managers agreed with the proposal that he drive the vehicle back to Brisbane and/or no one directed him not to do so.
  1. RI-CO denies that Millard was engaged in his employment at the time of the accident and argues that the crane was not being operated by Millard at the work place but rather was being driven by Millard from Acland to his home at Murphys Creek, for his own purposes.

 

Millard’s role at the Acland mine site:

  1. The evidence indicates that whilst Millard was qualified as a crane operator and had extensive tickets and qualifications he was not employed as a crane operator but as a construction supervisor or foreman on the Acland Mine Site. He was originally to be third-in-charge at the site but became the second-in-charge on the mine site. He explained:[1]

“…there was supposed to be an engineer come to…run the site. He never turned up which would have put me third in line. Geoff Perkins was contract manager. An engineer was to run the site and I was to be the construction supervisor looking after the day-by-day issues.”

  1. Millard had signed and accepted an offer of employment on 8 May 2006 as a “C8Engineering Tradesperson-Special Class, Level 1”. He was initially based at the Redbank offices of RI-CO prior to working at the Acland Site. There is no dispute that Millard disclosed, on his job application form, some pre-existing injuries. He was initially employed on a casual basis and was subsequently made a permanent employee on 6 July 2006 after he signed a second contract on 6 June 2006 on a “fixed term Project specific offer”. The position description in that contract was as a “Construction Foreman-Tradesman” which indicated that he was to report to “A Construction and Project Manager”. The job profile on the contract of 6 June 2006 stated: “A general job description for this position has not been developed. These duties will vary from time to time”.[2]
  1. Millard usually worked in the office at the Acland site with the assistance of an administration officer, Anna Woltmann, with whom he subsequently formed a relationship. Accommodation was provided for him at the Acland site, but in late 2006 he purchased a property at Murphys Creek which is about 60 kilometres from the Acland site. He commenced residing at that property with Ms Woltmann around Christmas 2006.
  1. Millard stated that his direct supervisor was Geoff Perkins who visited the site twice a week and was responsible for the operational side of the business. He also reported to Keith Bailey the general manager of the company who looked after all the administration aspects of the business including all of the insurance issues for the company. He was based in Brisbane and only went to the site on a couple of occasions. He stated:[3]

“Keith Bailey was workshop manager and financial-he looked after most of the finances, I believe, and Geoff Perkins was-he was, like- he’s an area contracts manager. So assumed they were on a similar level basis. I can’t tell you who was over above who. That’s most of my dealings-----In fact all of my dealings was with Geoff Perkins” 

  1. Millard’s evidence was that when he was first employed he was required to organise all the equipment needed for the Acland job and got quotes for all the equipment including the cranes. He stated that he then handed over the documentation and insurance issues to the general manager Keith Bailey because “once a quote was organised, it was all sent to Keith Bailey because he had to raise the purchase order”.[4] Millard indicated that a number of cranes were required on the site including the Franna.
  1. Millard gave evidence that the Franna was the only crane that was able to be freely moved around a site by being driven which is a feature that is unique to this type of crane. As the site supervisor, he stated that he was not required to operate any of the cranes or to drive the Franna on a day-to-day basis. He gave evidence, however, that he had driven the Franna on-site “very rarely but on occasion.”[5] Millard gave evidence that for a period of about a month the Franna had been driven on “Muldu Road” and the “Acland Kooya Road” near the site as that was the only way to get access to “the transport load out bin”, and to get to some of the “water bores” on the site. Distances of a kilometre and 500 metres were involved.
  1. Millard stated that he was given no particular directions about the use of the Franna and its use on public roads. He stated:[6] “We had to do the job. I mean there was no-nothing was said don’t be doing that. We had to go out on the road. That was the only access we had.” He also gave evidence that Perkins told him to see if he could get other work around Oakey for the Franna as “it may help offset some costs”.[7]
  1. Millard gave evidence about the insurance on the Franna during the time it was at Acland and stated that whilst he did not know what insurance was on a particular crane he understood they were all covered by insurance. He stated that RI-CO was looking after that aspect and that it had nothing to do with him.[8] He indicated, however, that he knew that RI-CO was to pay the costs of the transport back to the hire company and that RI-CO was to organise the insurance. 
  1. It is uncontroversial that RI-CO’s role in the commissioning of the coal processing plant at the Acland mine site was coming to an end in late January/early February 2007 and that some of the machinery which RI-CO had hired including the other cranes had been decommissioned and returned by low loader or trailer to the relevant hire companies. It is also clear that the Franna, however, remained on-site to finish some final tasks. Millard stated that he told the hire company and his superiors that the Franna would not be needed after 9 February 2007. There is a dispute about when those conversations occurred and what was said but there is no doubt that the Franna was to be decommissioned on 9 February 2007 and returned to the hire company, Tutt Bryant, at its premises at Rocklea on the outskirts of Brisbane.
  1. The evidence indicates that the Franna had originally arrived at the Acland site on the back of a low loader as Tutt Bryant had organised for it to come from Melbourne, due to a shortage of these cranes in Brisbane at the time. Millard stated that initially he thought the Franna would be returned to Melbourne but it subsequently became known to him in February 2007 that it was to be returned to Tutt Bryant in Brisbane. He stated that had the Franna gone back to Rocklea on the back of a trailer there would have been the cost of the trailer and, “marine and general insurance, because you’re putting it on somebody else’s truck”.[9]
  1. Millard argues that he was responsible for the return of the Franna and that when he discussed the return with the manager at Tutt Bryant the possibility of the vehicle being returned by road was discussed. Millard argues that he told both of his superiors, Keith Bailey and Geoff Perkins, that he would return it by road and, indeed, states he discussed the extension of the insurance with Bailey to this end. He argues that they knew he was returning it by road and they did not indicate that he should not return it in this fashion or prevent him from doing so.
  1. The arrangements for the return of the Franna, accordingly, assume particular significance in this case and it is therefore necessary to consider the conversations about the proposed arrangements for the return of the Franna in some detail. In essence, Millard argues that RI-CO, through its employees Bailey and Perkins, knew about the plan to return it to Brisbane by road and either agreed to the trip or did not indicate that it should not be returned in that manner. RI-CO denies any knowledge of any such plan and argues that at the time of the accident the Franna was being driven without its knowledge or approval.
  1. The real questions in this case are whether Millard’s injury occurred during the course of his employment because he was required by his employer to drive the Franna back to Brisbane, whether he was permitted to do so, or whether it was otherwise within the scope of his employment to drive it back to Brisbane via his home at Murphys Creek. Was it foreseeable that he would be using the Franna in this manner?

The circumstances leading to the accident

Millard’s account

  1. Millard’s evidence is that around 1 February 2007, which was the week before the week of the accident, Perkins and Bailey attended the Thursday site meeting at the mine. He states that the return of the Franna was discussed at that meeting. Millard states that during a conversation with Perkins and Bailey, Perkins told him that, “we would finish the job … by the crane as of the following Friday – the next Friday.”[10] Consequently, Perkins said that, “we’d finished, so we were to start getting the gear off-site.”[11] He stated that it was his responsibility to liaise with Tutt Bryant, to organise the return of the Franna. He continued, “I simply said I’ll ring Tutt Bryant and organise it for transport.”[12]
  1. Millard stated that on the following Monday or Tuesday, that is 5 or 6 February 2007, he had a conversation with Robert West, the national manager of Tutt Bryant as follows:[13]

“Basically I told him that the crane would be de-hired, or decommissioned, as you say, but ready to go back to where it came from on Friday afternoon. In the process of the conversation, he told me that the crane wouldn’t be going to Melbourne, that they had another job for it and it would go to Brisbane.

 

He [West] said the crane’s not going back to Melbourne, it will be required in Brisbane for another job… Just regarding getting the crane back to Brisbane, it had come up that we could possibly drive it, because the crane was registered for road use… In the conversation it originally come up from Rob West that we could possibly drive the crane down and save the company the transport cost…. I said, well, that’s – yeah. Well, we can drive the crane down and drive it down Friday afternoon and deliver it Saturday morning.” (my emphasis)

  1. Millard stated that he then spoke to Perkins about that specific conversation with West:[14]

“I spoke with Geoff Perkins sometime later in that day, I believe…. I told him that the – I spoke to Tutt Bryant and that the crane wasn’t going back to Melbourne, it was going to Brisbane and said speaking with Rob West he suggested if we could possibly drive the crane back to Brisbane to save transport costs and ---

…

He said, well, if it’s got to do that, do that basically.”[15]

  1. Both Perkins and Bailey state that the conversation about the return of the Franna did not occur until 7 February 2007 during the final days of the job at Acland. West also states that the conversation he had with Millard was in the week leading up to the accident and not the week prior as Millard claims.

 

The other accounts

  1. The evidence from West was that he recalls the conversation with Millard about the return of the Franna which he says was probably on Wednesday 7 February 2007. He stated that it “wasn’t a significant conversation”[16] but that Millard told him “…the crane would be off hire…probably Friday”.[17] He continued:[18]

“With construction in general, you’ve got to take that a little bit as may be because you can have the last bin – you’re trying to fit something, you’re trying to weld something, something that you think might take an hour takes a lot longer, so it’s not unusual for the tail end of the job to not necessarily be when – predicting it out three days in advance is a tough exercise for the guy on site. Not for me. It’s nothing for me. It arrives when it arrives.

…

Alright. So he told you towards the end of the week, and what happened next? What was said by whom and what was it that was said? --- Oh look, geez I have a very (sic) recollection at all. It was going to be finished at the end of the week and it was the end of the job. He said, I’ll catch up with you next week, I think, just to finalise out all the paper work.”

  1. When West was asked by counsel for RI-CO whether anything was specifically said about the Franna being driven by road to Rocklea from the Acland site, West replied:[19]

“No. No. No. It would’ve – it would’ve raised a flag to me purely because to – to explain – the Frannas that we own for dry hire, we don’t road license them because it costs about $50,000 per machine to road license it. We’re only using them on site so we don’t [road license them]…”

  1. Counsel for Millard asked West the following questions:[20]

“My client did tell you that he was going to drive it to your Rocklea depot on the Saturday, didn’t he? --- No.

He told – and this is a different question – at least after the accident, he told you that – and you disagreed for the first question that it didn’t happen in the conversation, right, this is a separate question, he told you at least after the accident that he was going to drive to Rocklea on the Saturday’ what do you say about that? --- I remember him talking about that but we don’t train (sic) on a Saturday so he’d roll up to a locked gate, we had nobody on deck for the Saturday to receive it so what he intended to do is – now, I don’t know what his intentions are but we would have had to have had people in there to receive that crane on Saturday. We don’t normally open on a Saturday.” (my emphasis)

  1. Geoff Perkins’s evidence was that he had a conversation with Millard on Wednesday, 7 February to the following effect:[21]

“Right. Well, coming to the particular crane, we understand the project was nearing an end and some of the cranes had been actually --- ? --- Yeah, so on the Wednesday, the only crane left on site was the Franna out of the three cranes and the only discussion I had with Noel was – they asked him when he was demobilising the crane and he informed me that he was demobilising it on Friday. That was the only discussion we had.”

  1. Perkins states that there was no conversation with Millard about a phone call to West until after the accident. Perkins gave evidence that it was only when Millard was in hospital that Millard told him that he had arranged with Tutt Bryant to take the Franna back to Brisbane by road. Perkins also rejected a suggestion that there was any mention by Millard of a discussion with West about the Franna travelling by road prior to the accident. He stated: “that is not the case, the only time that came up was when I visited Noel in hospital and he told me that he’d had a discussion with Rob West, that they’d agreed that he could drive the crane back to Brisbane.”[22] He indicated that, “Obviously I wanted to question him on why he was driving the crane and that’s how it came up.”[23]
  1. Perkins’ evidence was that if had he been told by Millard he was going to be driving the Franna back to Brisbane: “it would have necessitated further checks with-with Head Office in relation to-to that. I don’t think I would have agreed to it without checking with –with my peers or somebody”.[24] He also indicated that he was surprised when he was told that Millard had driven the Franna. He stated: “When I received the phone call about the accident I was absolutely surprised that Noel took the decision to drive the crane so I knew nothing about it prior to that.”[25] He later stated that he, “thought it amazing that he made the decision without discussing it with anybody.”[26]
  1. The evidence indicates that the insurance on the Franna expired on Friday 9 February. Perkins was asked in examination-in-chief whether Millard had approached him on 8 or 9 February to renew the insurance because he was proposing to drive it to Brisbane?  He replied, “definitely not” and indicated that in any event any discussions about insurance would have been with Bailey.[27] Perkins also indicated that if he had been asked about driving the Franna back to Brisbane he may have approved it but noted that it’s just “not economical”[28] to drive a crane long distances. He stated:[29]

“Well, they use a – quite a deal of fuel, and their top speed’s about 80 kilometres an hour.  So – and from a comfort point of view and – and economical point of view, it’s just not – it’s just not – how would you put it – sensible to put somebody in a – in a crane that is fairly uncomfortable to travel in for hundreds and hundreds of kilometres.  The logical – the logical way to do it would be to bring it on a road transporter, the way they were brought to site.

 

But do you know, or don’t you know, that other people used to drive them on the road to take them from A to B ‑ ‑ ‑?‑‑‑Oh, they drive around town all the time.  Yeah.

 

Even distances such as Acland, then, and Brisbane?‑‑‑Possibly.” 

  1. Keith Bailey stated that whilst he was the general manager of the company his role was basically administration and involved assisting with the commercial agreements, organising insurance cover, purchase orders, and ensuring the employees complied with the site requirements. He gave evidence that he went up to the mine on 7 February “to oversee final checkoffs and so forth, which included a close out meeting with the client at Acland”.[30] He continued:[31]

“I went on site on February 2007, which was two days before the project was fit to be finished on site.

And what was the purpose of your visitation on the 7th of February?---A couple of reasons. One was to thank the staff for their work, to say by to those that were employed with the project and would be ceasing that week.----I also went there specifically to coordinate the last of any equipment to be returned back to Brisbane.”

  1. In relation to the specific conversation he had with Millard about the return of the crane Bailey stated:[32]

“The discussions were related to confirmation about where he's up to with Tutt, the provider of the crane.  Through the discussions it was clear that the crane was going to be de‑hired from the site on February 9, and that it was then up for me to arrange for the transport of the crane back to Brisbane, or possibly Melbourne, because that's where the crane came from, and I also had copies of the purchase order and the ‑ the fax sheet that I had originally from Huntingdale which requested that we have insurance for it to go back, so I went through the processes.  The discussions were trying to clarify what he may have had discussions with Tutt Bryant, and then my role was to pick that up and document whether the steps were to be from the Monday, February 12.

…

The discussions concluded, from my clear understanding, that I was going to then follow through with the crane provider on Monday to arrange for the return of the crane to wherever it had to go.”

  1. He also gave evidence that he had no knowledge of plan to drive the Franna back to Brisbane prior to the accident. He was asked the following questions by counsel:[33]

“Did he [Millard] at any time in the course of the discussion on Wednesday the 7th say to you that arrangements had already been made with Tutt Bryant for him to drive the crane back to Brisbane? --- No, it was not. It was definitely – it was not brought up in that conversation, and – and I had a follow-up discussion with Anna Bidgood [now Woltmann] on Friday to re-affirm the status of it and through both of those events it was never disclosed of the intent to drive it back. It was still the discussions that I had at that time, which was simply the vehicle was not required on the Friday and then I would follow through to organise its return…

 

Was it ever said to you on Wednesday, the 7th that Mr Perkins had already approved the fact that Mr Millard would drive the crane back to Tutt Bryant? --- No. It was never to disclosed to me and in light of the conversation it was never raised.”

  1. Anna Woltmann, who was in a relationship with Millard at the time of the accident, was working at the site as an administration assistant in February 2007. She gave evidence of parts of two telephone conversations about the Franna that she heard between Millard and other parties in the fortnight leading up to the accident. She stated that in the week prior to the accident she heard Millard say words along the lines of, “when do you need it? How do I get it there?” She said she discussed that call later with Millard who told her he had spoken to West from Tutt Bryant who said that the crane wasn’t going back to Melbourne but was to be returned to Brisbane. She states he had then said he would save some money by driving it back.  She continued:[34]

“So that changed the whole focus of it.  They didn't have to get it to Melbourne.  It can just come back to the ‑ to the yard at Rocklea.

 

All right.  And then you do say, I'm sorry, "I recall Noel saying to the person on the phone how did they want to get it back to Rocklea", and you say, "I was later informed by Noel that Rob said to him that the crane was registered for road use and he could drive it if he wanted to, and that would save the company", meaning RI-CO, "Money of commercial transportation to get it back to Rocklea"?‑‑‑Uh‑huh.”

  1. Woltmann gave evidence that she also heard Millard speaking to Perkins on the phone in the week prior to the accident and she heard Millard say to Perkins “I’ll organise for the crane to go back to Brisbane and I’ll drive it”.[35] In cross-examination she confirmed that she heard words to the effect that “I’m happy to drive it to Brisbane to save money”.[36]
  1. Under cross-examination Woltmann denied any memory of informing Bailey four weeks after the accident that she was not aware of any agreement between Perkins and Millard allowing him to drive the crane. She was asked about that conversation as follows:[37]

“No, no, no.  Come forward, you see, to the 3rd of March ‑ ‑ ‑?‑‑‑Yes, to ‑ to Mr Bailey.

 

‑ ‑ ‑ when you're having a conversation with the general manager, wasn't he?‑‑‑Keith.  Yes, he was.

And he said ‑ he's investigating the unlawful use of a crane, you see, and he says, "Do you know anything about it?"  And you say, "No, I don't know anything of any agreement between Noel and Geoff authorising Noel to drive the crane."  That's what you said?‑‑‑If I did back then, I don't ‑ if I was referring to an agreement as in a fax copy to say yes, you've got authorisation, no, I didn't see any paperwork.  I did hear a phone call that was saying I'll organise it and it was all okay.”

  1. Woltmann confirmed Millard’s evidence that they had agreed that Millard would drive it home first and then drive it to Rocklea the next morning where she would pick him up.[38] Woltmann gave evidence that she attended the scene of the accident shortly after it occurred and had gathered up items that had been strewn on the road such as chains and slings. She stated that she had placed them in the boot of her car as they belonged to RI-CO.

Factual Findings regarding the return of the Franna

  1. Having considered the evidence of the conversations in the week leading up to the accident I do not accept Millard’s account of the conversations with West, Perkins or Bailey. I consider that Millard’s evidence was lacking in detail and that some of his answers lacked both clarity and certainty. In my view some of his answers were noncommittal and others were evasive. I also consider that his account was improbable when considered with the other evidence.
  1. In my view, Millard’s account that West suggested he drive the Franna to Brisbane by road so that RI-CO could save some money is inherently unlikely for a number of reasons. First, the savings involved would be insignificant in the overall scheme of the project given the estimate for transport cost was in the vicinity of one thousand dollars.  Secondly, there was no reason for West to be concerned about savings to RI-CO. Furthermore, I accept West’s evidence that any suggestion that it would be returned by road would have raised flags with him given the normal practice was to return it on a low loader.
  1. Of particular significance is the fact that Tutt Bryant was not expecting the return of the Franna on Saturday as Millard alleges. Importantly, the office did not trade on a Saturday and if Millard had returned the Franna as he alleges he would have faced a locked gate.
  1. I also accept Perkins’ evidence that there was no mention by Millard of West suggesting a return by road until after the accident.
  1. I also consider that Woltmann’s evidence shortly after the accident was that she was unaware of any plan to return the Franna to Brisbane. I do not accept her subsequent account that she was referring to a written agreement. I did not find Woltmann’s account of the agreement between Perkins and Millard for Millard to drive the Franna to Brisbane to be credible, given her earlier denial of any agreement and her concession that her memory of some of the conversations was “fuzzy”.[39]
  1. I also consider that the conversation about the return of the Franna is more likely to have occurred on Wednesday, 7 February, as indicated by West, Bailey and Perkins, rather than on the prior Thursday as Millard stated. Bailey only visited the site on about six occasions during the construction period and his firm evidence was that the final visit was on Wednesday, 7 February, when he went up to wind things up on the site and to organise the return of the last pieces of equipment. I accept that the timing of the visit would have particular significance for him and was scheduled to coincide with the final days of the project. I also accept that the date for the decommissioning of the Franna would only be known in the days immediately prior to the decommissioning and not eight days beforehand.
  1. I also accept Perkins’ evidence that any suggestion by Millard that he would drive the Franna back to Brisbane would have required him to get further approvals. I also accept the evidence that West, Perkins and Bailey were all surprised when advised that Millard had been injured driving the Franna and that he had taken it down Murphys Creek Road. 
  1. I also consider that, given the discomfort and challenge of driving the Franna on a highway to Brisbane for over two hours and the need to arrange a pick up in Brisbane, Millard would not have considered that it was preferable to return it this way rather than simply putting it on the back of a low loader. I accept Perkins’ evidence that it was neither ‘logical’ nor ‘sensible’ to return the crane in that way. Furthermore, neither of his superiors had, in any way, indicated that returning the Franna on the back of a low loader would have posed any difficulty. Bailey’s evidence was that he would have organised the paperwork for the return in that way the following week and, indeed, it was his plan to do so. 
  1. I am satisfied that Perkins, Bailey and, indeed, West were all unaware that Millard was going to drive the Franna to Brisbane. I am also satisfied that Millard was not given a direction by Perkins or Bailey to return the Franna to Brisbane by road.
  1. Also relevant to this issue of the use of the Franna on 9 February 2007 is Millard’s assertion that he had previously been permitted to use the equipment and had used the Franna in December 2006 during the Christmas shutdown.

 

The use of the Franna in December 2006 and a cherry picker in 2007

  1. Millard stated that he had travelled down Murphys Creek Road in the Franna prior to the accident as he had taken the Franna from the Acland site on 25 December 2006 so that he could move house. When Millard was asked whether anyone from RI-CO knew that he had taken the Franna from the site for this purpose he stated, “Yes, I believe so.” Millard further elaborated that Geoff Perkins knew that he had taken the Franna for this purpose because he told him so:[40]

“I told him I was shifting house. I’d bought a house at Murphy’s Creek and the people had given me the okay to move in over Christmas and I had some equipments and gear at – an old F-100 and a bit of other stuff at Murphys Creek at – sorry, at Acland in the house I was in and I used the – I asked him if I could use the trailer and the crane and may be able to shift into the house at Murphys Creek.”

  1. Perkins denies this account of his knowledge of the use of the Franna in December 2006 and stated, “No, absolutely not.”[41] He further stated that:[42]

“The Christmas period – the December Christmas period the – the – the – the mine - the mine’s shut down and we shut down for a 10 day period and the equipment was – all of the construction equipment was off-hired for that 10 day period and the hirers chose to leave it on the mine site, so it was out of our care and control, if Noel had spoken to me about using the crane, it was impossible for me to approve it because it would’ve necessitated me going to the client and getting new mechanical approvals to bring it back onto the mine site, so it didn’t happen.”

  1. Bailey also stated that he had no knowledge of the Franna leaving the site in December stating that he only saw this in the police report after the event. He stated that if he had known that Millard had taken the Franna off the site in December 2006 he would have reacted. He states:[43]

“I would have immediately reacted to it, because I would not have agreed to that happening for all sorts of reasons, risk, insurance, and there was also a requirement to have permission from the client to get the equipment back to the site.”

  1. Ms Woltmann confirmed the off-site use of the Franna in December 2006 in the following terms:[44]

“Noel had previously brought the Franna down to your property, hadn’t he? --- I think he did at one stage, but I wasn’t there. I wasn’t there. If he – if he brought it down, I was still in a relationship with my ex-husband at that – my then husband. So there were periods of time where I wasn’t there.”

  1. There was also evidence from both Millard and Perkins that Millard had asked to use another type of crane called a cherry picker at his property at Murphys Creek. Perkins was asked by counsel for RI-CO the following questions:[45]

“And did you at any time authorise the use of hired equipment off the – as far as Mr Millard was concerned – off the site?‑‑‑There was – there was an instance about two weeks before the accident when Noel informed me that we were decommissioning a boom lift, or a cherry picker and he wanted to remove a tree at his new property, and asked me if it was okay if he could take it there, and I said provided – it was being decommissioned so it was being taken from – from our mine site – provided he cleared it with the equipment hirer, I’d okay it.  And that’s the only time that I ever knew of any equipment leaving the mine site.

 

And did he tell you whether he did clear it with the equipment hirer?‑‑‑No, he never told – he never confirmed that but I assumed he did.

 

Do you know if in fact he did go ahead?‑‑‑Well, I assumed he – he took it to his place and did the job, but I’m not sure about whether he cleared it with the equipment hirer or not.”

  1. Bailey was questioned by counsel for Millard about the apparent use of the cherry picker by Millard prior to the accident as follows:[46]

“See my client wanted to borrow a boom at one stage, or there was talk about that. Do you know that? --- Borrow a boom crane?

 

Sorry. It’s a boom lift or a cherry picker I keep calling it? --- Yeah. I heard about that after the event, yes.

 

So again, you didn’t know supposedly when that was going on. You didn’t know anything about that? --- It was first disclosed to me on one occasion that there was some equipment being used off-site. As soon as I heard about it I started asking questions. Specifically it was asked of Geoff – I asked Geoff when I heard it. I only become [aware] of comments given to me from the payroll officer. She picked it up in a conversation with someone from the site and I queried about it and it was – it was a – [indistinct] proper term. It’s like a little scissor lift. It was like a machine like a platform crane. A fairly small machine.

 

And what I’m saying is again, there was no policy about people borrowing – when I say policy, I mean in writing. You did not have a written policy about people borrowing things? --- It was a standard rule that no equipment could be taken off-site without getting permission.

 

An oral rule? – In the context of both the Redland – Redbank site, which is where we’re normally based in Acland, yeah that’s correct.”

  1. In cross-examination, Millard recalled that the cherry picker or boom lift had been authorised to be used off-site once it had been had decommissioned but denied any conversation with Geoff Perkins in which Mr Perkins told Millard that he had to confirm the off-site use with the owners of the equipment.[47] The evidence is unclear as to whether that crane was in fact taken to Murphys Creek and used by Millard.

Findings in relation to the use of hired equipment prior to the accident

  1. I consider that the evidence indicates that Millard used the Franna at his property for his own purposes in December 2006 and that he subsequently returned it to the Acland site.
  1. I consider that the evidence indicates that Millard used the Franna on that occasion without the knowledge or permission of either Bailey or Perkins.
  1. I consider that such approval would have been unlikely, given the risk and insurance issues associated with such an approval, as well as the need to obtain the permission of the owners.
  1. I also accept Perkins’ evidence that he told Millard that the permission of the owners was required for the use of a cherry picker off-site.
  1. I also accept Bailey’s evidence that there was a standard rule that no equipment could be taken off-site without permission.
  1. Another issue which needs to be considered in some detail is Millard’s understanding of the insurance cover for the Franna at the time he was driving it on 9 February 2007, as it goes to his state of mind at the relevant time.

The insurance on the Franna

Millard’s understanding of the insurance.

  1. In relation to the insurance of the Franna, Millard stated that he “was under the understanding that it was insured. I was told that RI-CO would look after all the insurances. And that was out of my jurisdiction; I had nothing to do with that.”[48] In examination-in-chief, Millard stated that he “can’t answer what insurance was on that particular crane, but if you put – if I own a truck and you put something on that truck, I can’t insure it for you. You have to insure it yourself under – I think it’s called marine and general insurance.”[49] Millard further noted that “If you’re going to have a vehicle on the road, it should have – I believe that it’s a comprehensive insurance.”[50]
  1. In cross-examination, Millard was further questioned about the insurance cover for the Franna. He said that he “did not have any knowledge of who the insurer was”[51] or that the insurance expired on 9 February 2007:[52]

“I’m not sure when it expired. I knew that they needed to get an extension because we ended with the crane – the crane was supposed to have been gone by about end of January, 1st of February and they got an extension at some stage. I don’t know who with or – that was arranged with, I believe, with Geoff Perkins and Mr Bailey. ”

  1. It would seem clear that Millard believed that the Franna was comprehensively insured for use on a public road because: “we had to take the crane on the road work and he told me that it was fully insured, so I assumed that it was fully insured.”[53] When further questioned on the insurance of the Franna at the time of the accident, Millard acknowledged that he had been the recipient of an email dated 31 January 2007. That email, originally from a Mr Brian Kundle, stated that he “spoke to QBE who confirmed they will extend the expiry date on the above policy in relation to the Franna AT 29 crane until next Friday 9 February 2009.”[54] Counsel for RI-CO then contended:[55]

“So you knew that if not when you drove the machine to Murphys Creek but certainly when you dropped it back to Tutt Bryant on either the 10th or perhaps the 12th that you had no cover on the vehicle at all. You knew that as and from the 31st of January of 2007, didn’t you? --- That – that email that come in on the 31st of January – that was the confirmed one – one extension and insurance coverage gets – gets extended regularly.

And did you get another one? Did you get another one extending it beyond Friday, the 9th of February of 2007? --- I don’t think so.”

 

The insurance of the Franna explained by Keith Bailey:

  1. Bailey was required to organise the insurance of the equipment for the Acland mine project. In relation to the insurance of the Franna he stated:[56]

“There was a policy that covered the crane on-site not being used. There was another policy to cover it on-site being used, and then there were different insurances required to get it to and from the site depending on how.”

  1. Bailey further stated that the Franna was not insured to be driven on the public road and “insurance was taken out to cover the operation of the crane on the site only.”[57] He indicated that the Franna was covered by two types of policies. One was called contractor’s plant and equipment insurance and was specifically for the operation of the crane and there was a more generic coverage called plant and equipment under hire.[58] These policies covered the Franna for damage, or property damage or the failure of the Franna through normal wear and tear.[59]
  1. With respect to the expiry of the Franna’s insurance on 9 February 2007, Keith Bailey confirmed that he “always knew that the insurance ceased at 4 pm. I knew that because I was monitoring it.”[60] He confirmed that Perkins view that the insurance expired at midnight on 9 February 2007 was mistaken.[61]
  1. In cross-examination, Bailey was asked by counsel for Millard if he had discussed insurance with Millard at any stage. Bailey replied:[62]

“It was covered lightly at the beginning of the project when we were trying to organise the – the acquiring of the cranes and so forth. There were a couple of low level discussions at Redbank at the time, and – and with the nature of the Franna crane, he specifically asked me to organise the insurance to get the crane from Melbourne, because he was the – receiving documentation from the Brisbane based crane hire.”

  1. Bailey was asked to elaborate on the meaning of “comprehensive insurance” and whether full comprehensive cover allows the Franna to be driven on road. Bailey stated that:[63]

“No. It was for the transit of the crane. That is to put it on the back of a low loader. It was coming from Melbourne and I had to then organise with Austcover to get a specific insurance cover and I had actually to nominate the date, the route, the road and so forth in response to the request from Noel to me to organise that.”

  1. When asked by counsel for Millard if he had ever had a conversation with Millard regarding the meaning of full comprehensive cover, Bailey could not recall any such conversation.[64]

Was Millard driving the Franna to Murphys Creek as part of his role with RI-CO or for his own purposes?

  1. As I have previously indicated, I am satisfied that Millard was not required or directed to drive the Franna to Brisbane himself by road by his supervisors.
  1. I am also satisfied that Millard drove the Franna without the knowledge of either of his supervisors on 9 February 2007 and that they were unaware that there was a plan to return the Franna to Brisbane in this way.
  1. The question which arises, however, is whether returning it in this fashion was something which could be considered to be part of his role with RI-CO or something which was closely involved with his employment. Was returning the Franna to Brisbane in this way nonetheless something which should be considered to be an act which someone in his position might well carry out? 
  1. It would seem clear to me that Millard was employed as the site or construction supervisor and, as he himself indicated, it was not any part of his role that he was expected to drive the Franna or any crane. He was supervising construction work on the site. In my view the evidence indicates that whilst Millard had chosen the cranes needed on-site and had sourced that equipment he had not organised the actual delivery of the equipment as that was organised by Bailey. Similarly, whilst he had indicated the cranes could be decommissioned, the actual return was clearly to be organised by Bailey. I accept Bailey’s evidence that he was the one who was responsible for organising the return of the Franna, given his evidence that he was the one responsible for all the administration, including all the contracts and insurance for the project. He had organised the insurance for the cranes to get to the site and indeed he was expecting to organise the return of the Franna in the week following the accident.
  1. Accordingly, I do not consider, therefore, that it was part of Millard’s role at RI-CO to return the Franna. Was the return in this fashion nevertheless inextricably linked to his employment? To answer that question there needs to be a determination as to what Millard was actually doing when he had the accident. Was he actually en-route to Brisbane via an overnight stop at Murphy’s Creek as he maintains?
  1. I consider that there are several factual matters which give rise to an inference that Millard was intending to use the Franna on his property for his own purposes over the weekend and return it to the Acland site. If one was intending to return a crane directly to Brisbane, a route via Murphys Creek is not the most logical route. The most direct route to Brisbane is to drive via the main Warrego Highway. Commonsense also indicates that it would be better to drive a slow moving crane on a large multi lane highway and not on a single lane road such as Murphys Creek Road.
  1. Another factor is that the chains and slings that were found on the road after the accident and placed by Woltmann into the boot of her car were in fact the property of RI-CO. It is difficult to believe that the removal of these items from the Franna would have been overlooked if it was being returned directly from the Acland site to Rocklea. The inference is that those items were on the crane because they were needed and were to be used by Millard to move items around his property as he had done previously. Millard had, in fact, used the Franna in this way over Christmas 2006.
  1. Furthermore, Millard fully believed that the Franna was comprehensively insured for use on the road. This belief was incorrect but there is no doubt that he considered he was fully insured when driving the Franna on the road at the time of the accident. Bailey and Perkins both knew that to take the Franna off-site required alteration to the insurance cover as well as various notifications.
  1. Ultimately, Millard’s account that he was driving the Franna to his home so he could drive it directly to Brisbane the next day does not sound credible. Millard had accommodation provided at the Acland site and if he planned to return the Franna by road on Saturday, as he alleges, the sensible option would be to return it via the main highway from Acland on Saturday morning.
  1. It would also seem clear that the return of the Franna in the way Millard alleges was to be done outside of Millard’s normal working hours and on a weekend. Furthermore, he was planning an uncomfortable trip which would take many hours. If he wanted to return it via the road, he could have done so on Monday during working hours when the hire company would have been open. It would also seem unusual to me that Millard would volunteer to spend two or three hours driving a crane to Brisbane given this necessitated someone following him to Brisbane to drive him back home.  Necessarily this was a four or five hour round trip.
  1. I am not satisfied that Millard has established on the balance of probabilities that when he was driving along Murphys Creek Road on Friday afternoon and had the accident, he was in fact driving en route to Brisbane.
  1. In my view, the crane was being taken to Millard’s Murphys Creek residence for use by him there. Was this something that RI-CO should have foreseen as a possibility and therefore directed Millard not to drive the Franna on a public road?
  1. Was something inherently dangerous in driving the Franna and should Millard have been warned of the dangers of an accident occurring, given its inherent vulnerabilities? In this regard, it is first necessary to examine the way in which the accident occurred.

The accident

  1. Millard has no recollection of the actual accident due to the substantial injuries that he sustained upon impact, remembering only a white blur to his right. He states that he was wearing a seatbelt at the time. However, it is accepted that the accident occurred on Murphys Creek Road at the location where Murphys Creek crosses underneath the main road.[65] The road is single lane in each direction with a bend to the left in Millard’s direction of travel. Both parties accept that the lane was wide enough for the Franna to fit in the lane. The evidence establishes that the accident occurred soon after Millard passed a 1985 Honda Civic being driven in the opposite direction by Neil Parkins who was returning from Amberley to his home at Highfields.
  1. The speed limit on Murphys Creek Road at that point is 100 kilometres per hour with an advisory speed limit sign near the site of the accident which advises vehicles to travel at speeds less than 70 kilometres per hour. Parkins’ evidence is that his car was doing about 90 kilometres per hour as he encountered the Franna coming towards him. Steve Wicks was travelling in a car behind the Franna and his evidence indicates that he was travelling about 70 kilometres per hour as he caught up to the Franna which he estimated was travelling  “close to 60”.
  1. Parkins’ evidence is that as he saw the Franna he could see the driver fighting to keep the machine on the correct side of the road. His recollection was that as he entered a right hand bend (in his direction) on Murphys Creek Road there was a “green crane coming the other way. I noticed that he was drifting across to my side of the road…his front right hand tyre was gradually making its way across the centre lines of the road.”[66] Wicks also gave evidence to the same effect indicating that: “The wheels at the centre line, once again, you’ve – you’ve got slightly on the right-hand side of the centre line.  So the dual wheels – one of those dual wheels is on the centre line, and one of those dual wheels is over to the left.”[67] Wicks noted that “the Franna was doing its best to stay within the edge of the road – the shoulder on the left-hand side as well as the double white lines on the right-hand side.”[68]
  1. The evidence of both Wicks and Parkins is that after passing the Honda Civic, the Franna had veered on to the shoulder of the road and Millard then lost control of the Franna, possibly in an attempt to avoid a large tree on the shoulder.[69] Wicks stated that it then went onto the other side of the road and into an embankment but that “It didn’t go just sharp right, it – it just glided across to the right.”  He continued:[70]

“So if you’re coming around the corner, he’s got a wheel tendering to the shoulder on the left, a wheel tendering to the white – the white on the right.  And as he comes around the corner, the blue car comes around. Yes?‑‑‑He goes left to give him room.  He’s now more on the shoulder.  Then he goes right.”

  1. Parkins’ evidence was that:

“He [Millard] corrected enough that he’s got himself back into his lane again but from what I could see he’s overcorrected and he’s not gone off onto his soft shoulder of his lane and the crane was then heading towards a rather large gum tree. So he’s corrected again and he’s lost control of the vehicle and it’s speared across the road and it’s ended up into an earthen embankment.”[71]

  1. As a result of the impact Millard was thrown from the driver’s seat onto the floor of the passenger side of the vehicle. He was not wearing a seat belt at the time he was found.
  1. I accept that there was no indication that any party was travelling at speed in excess of the speed limit. Indeed, all of the evidence is that all parties were travelling at speeds within the recommended ranges for that location. It would also seem from the evidence that whilst the vehicle was on or marginally over the centreline at times, Millard was vigilant in endeavouring to keep on the correct side of the road. Despite travelling within the recommended speed limit, Millard may still have been driving the Franna at a speed which was inappropriate for the situation which unfolded. The evidence, in fact, indicates that the accident occurred when the Franna travelled on to the shoulder of the road to give sufficient room to an oncoming car and then went off the road as a result of an overcorrection.
  1. Millard maintains that he was wearing a seatbelt. It was not a standard shoulder/lap seatbelt but rather was just a lap seatbelt. The evidence of Parkins, however, was clear that when he reached the accident scene Millard was in the well of the crane and accordingly not restrained by a belt.[72] Accordingly, there are only two options, namely, either Millard’s memory is incorrect or the seat belt malfunctioned. The witness Niha supports this later conclusion. He was one of the crane operators who worked at the site and he maintains that the seatbelt was defective and that he had reported it but that that this defect was never fixed while he was at Acland.[73] He stated:[74]

“There was kind of a malfunction in the – in the fitting of the belt. It wasn’t like a normal belt; you – you slide it in, it will just clip in. You had to force it or wriggle it around and it will eject itself. Sometimes it will pop out and other times you think you’ve got it in but it’s just sitting there.”

  1. I have some difficulty with Niha’s evidence, given it had not been raised at any time in the preceding seven years and only came to light at a late stage in the trial. There is no doubt that Millard was not thrown clear of the vehicle and that most of his injuries were to the upper part of his body and his foot. It would seem to me that given the nature of Millard’s injuries, the size of the crane and the fact that it was a lap seat belt only, the nature of Millard’s injuries would not have been substantially different whether the seatbelt had or had not been worn. His most severe injuries were head and facial injuries. There is no evidence before me that Millard’s injuries would have been substantially different if he had or had not been wearing a lap seat belt at the time. They may have been different if he had been wearing a combined shoulder/lap belt but there is no evidence in this regard. Accordingly, I am not satisfied that the seat belt was a significant issue which would have affected the nature of his injuries.
  1. The question remains as to whether there something inherently dangerous in the functioning of the Franna such that Millard should have been warned not to use or drive it?

The Franna

  1. Dr Duncan Gilmore is a mechanical engineer and was the expert appointed by the parties to provide a report on the capabilities of the type of crane driven by Millard at the time of the accident namely a 20 tonne, 2004 model Franna AT-20 crane. In a report dated 2 November 2012, Dr Gilmore made it clear that he had not examined the actual vehicle which had been driven by Millard. He indicated the vehicle involved in the accident, which is called a “Franna”, is a type of crane known as the “Pick and Carry” or “taxi” crane.[75] It has an overall width of 2490 mm, overall height of 3070 mm and overall length of 9670 mm with the boom retracted.[76] These dimensions mean that the Franna is a large vehicle on the road, and is comparable to many trucks and buses.
  1. Dr Gilmore gave evidence that Franna cranes can be driven on roads and can be set up in less time than other types of cranes which require the use of outriggers (stabiliser legs).[77] Franna cranes are also suitable for use in rugged environments and are capable of tight steering. Its manoeuvrability and its capacity to be driven on-road have made the Franna a popular crane in the building industry.
  1. He stated that the performance and stability of the crane are dependent on the height of its centre of gravity. Due to the Franna’s lower engine height, an unloaded crane has a lower centre of gravity, and thus higher roll threshold than laden truck and trailer/prime mover vehicles.[78]
  1. Dr Gilmore stated that the Franna is an articulated vehicle, which means that it has a central joint or hinge located between the front and rear axles. Steering is accomplished by controlling a pair of hydraulic rams, one on either side of the articulation.[79] He indicated that this form of steering effectively rotates the front half of the vehicle in the desired direction of travel. However, some or all of the wheels will be dragged sideways on the ground because all wheels are fixed in a position perpendicular to the corresponding axel.[80] This articulated steering system allows the Franna to have small turning radium for its size which is different to the Ackermann steering system commonly found in the majority of the world’s passenger vehicles and trucks. [81]
  1. Dr Gilmore did not consider that there was anything intrinsically dangerous about the Franna but did acknowledge its limitations: “I think my report spells out is advantages and disadvantages. I don’t back away from its disadvantages. It does have plenty of peculiarities that aren’t optimum, but it still works quite well. And, you know, they work quite well on job sites.”[82]
  1. Dr Gilmore stated:[83] 

“I am acknowledging its downsides [in the report] and like – as I said, it’s a heavy vehicle with unique characteristics and with certain negatives in driving which can’t be dismissed. It doesn’t drive like a Ferrari and has – certainly has – disadvantages, and if you want to capitalise on its bad points, you can do that quite easily. But – and the skill, I suppose, in operating it and the knowledge in being an experienced operator is to be aware of those characteristics and be trained to avoid them, essentially.”

  1. When asked if the Franna should be driven on road, and in particular if the Franna should be driven from Acland and Brisbane, Dr Gilmore stated:[84]

“That particular road – well, again, no, I wouldn’t go – I wouldn’t go that far. I mean, if you look at the road, it’s – it looks to be an adequate road of adequate width. Given the right speed, there would be no reason why you – why you couldn’t but, again, it’s potentially a matter of speed, I think.”

  1. Dr Gilmore agreed that bumps on a road would make the Franna more prone to lose control and that if one set of wheels was on grass and another on bitumen then the traction available to each set of tyres would be different.
  1. On the basis of Dr Gilmore’s report and his evidence, there would seem to be insufficient evidence to indicate that the Franna is inherently dangerous and should never be driven on a road. Whilst the Franna does have some limitations, Millard as an experienced crane operator was well aware of those limitations.

Factual Findings

  1. In light of the above discussion I am satisfied that I can make the following factual findings:
  1. Millard was not given a direction by Perkins or Bailey to return the Franna to Brisbane by road;
  1. Perkins, Bailey and West were all unaware that Millard was going to drive the Franna to Brisbane himself;
  1. Millard was not required to drive the Franna to Brisbane by road as part of his role as construction supervisor at the Acland Mine Site;
  1. the crane was being taken to Millard’s Murphys Creek residence for use by him there;
  1. the accident occurred when the Franna travelled on to the shoulder of the road to give sufficient room to an oncoming car and then went off the road as a result of an overcorrection by Millard; and
  1. the Franna is suitable to be driven on appropriate public roads with care.

Millard’s injuries

  1. RI-CO accepts, and I have no doubt, that Millard sustained serious injuries which included a closed head injury, a major compression fracture to the 11th vertebral body of the thoracic spine, a fracture to the right Os calcis, a fracture to the clinical crowns of five teeth, a fracture to the mid third of the face, right orbit, right maxilla, extending into the hard plate, right zygomatic arch, right frontal sinus, the pterygoid plates, nasal plate and masal bones with subsequent sinusitis, a wedge fracture of the superior end plate of L1 and aggravation of the pre-existing lumbar spondylosis. Millard also suffered soft tissue injury to the cervical spine, right supraspinatus tendonitis, fractures of the 5th, 6th and 7th ribs, pulmonary contusion with associated pneumothorax and plural effusion. As a result of those injuries, Millard alleges that he has also suffered post-traumatic stress and depression. Millard underwent hospital and other treatment, including surgery on multiple occasions.
  1. The evidence indicates that Millard suffers from headaches, backache, rib pain, facial pain, numbness around the face and lip, memory loss, difficulties in concentrating, difficult in walking and pain in the right ankle. He also has difficulty with his impairment of vision and difficulties with sexual intercourse and grossly reduced tolerances for sitting and standing. Millard states that his capacity to engage in many of his former activities has been diminished or lost.
  1. There was no doubt that Millard was not employed for 134 weeks post accident. Prior to being employed by RI-CO, Millard had disclosed on his job application form that he had undergone a triple bypass in 2000 but that he had no ongoing heart issues and that since 1997 he had suffered from industrial deafness.

Was RI-CO in breach of its duties as an employer?

  1. Millard argues that RI-CO as Millard’s employer owed him a duty of care and that it was also an implied term in his employment contract to take reasonable care not to expose him to a foreseeable risk of injury. Millard places reliance on the decision of the High Court in Kondis v State Transport Authority,[85] where Mason J held:[86]

“… It has been accepted that the content of the ordinary common law duty of care is a duty to exercise reasonable care (and skill) or to take reasonable steps to avoid risk of harm to a person to whom the duty is owed. The degree or standard of care required varies with the risk involved. Those who engage in inherently dangerous operations must take precautions not required of persons engaged in routine activities...This involves no departure form the standard of reasonable care for it predicates that the reasonable man will take more stringent precautions to avoid the risk of injury arising from dangerous operations.

If the employer’s common law duty of care to his employees is no higher than the general duty to take reasonable care and skill for their safety, it imposes on him an obligation to take reasonable steps to provide adequate plant and equipment, a safe place of work and a safe system of work. …”

  1. There is no doubt that RI–CO had a duty to take reasonable care for Millard’s safety. They had to ensure that he had a safe place of work, a safe system of work and that he was provided with adequate plant and equipment. It would seem clear that the Franna and, indeed, all of the equipment had been hired from hire companies for use at the Acland site given that generally the equipment was only covered for insurance on the site. There is no doubt that the Franna was used to drive short distances around the site including for a short time on a public road that was adjacent to the site by workers who were suitably qualified to drive it. That included Millard from time to time. There is no indication or allegation that the Franna was being used inappropriately at the Acland site. There is no allegation that the Franna was inherently unsuitable for use at the Acland site. It was being used for the purpose it was intended for. Millard was supervising all the construction work and was considered to have done a good job. There is no indication therefore that RI-CO failed to take reasonable care for Millard’s safety at work.
  1. RI-CO also had a duty to avoid unnecessary risks of injury to Millard. Should RI-CO, however, have foreseen that an employee would take the Franna for his own use without its permission or knowledge and crash it after driving a considerable distance on a public road whilst overcorrecting on a curve? In this regard counsel for Millard placed reliance on the more recent decision of the High Court in Czatyrko v Edith Cowan University,[87] where the majority held:[88]

“[12] The appellant relied in this Court on these basic general principles. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness particularly in the case of repetitive work.”

  1. I am not satisfied that RI-CO should have foreseen the possibility of an employee taking a specialised piece of equipment without permission and crashing it whilst using it for his own purposes. Clearly the equipment did not belong to RI-CO. It had a policy that hired equipment would not be taken off-site. It would be extraordinary if an employee considered that they had any right to use the equipment for his own purposes let alone to drive it for 60 kilometres on a country road. I am not satisfied that RI-CO should have foreseen such wilfully inappropriate conduct. I am not satisfied that Millard has established that RI-CO owed him a duty of care to warn him not to use equipment he had absolutely no entitlement to use.
  1. Millard also argues that the Franna was inherently dangerous and he should have been warned of its dangers and directed not to drive it on a road.

Should RI-CO have warned Millard of the risk inherent in driving the Franna on the road?

  1. Millard specifically argues that RI-CO was negligent or in breach of the terms of the contract of employment by allowing Millard to drive the Franna by road when it knew or ought to have known of the unreasonable risks and dangers of injury inherent in doing so because of its design the Franna was susceptible to veering off the road as the small turning circle makes it prone to oversteer. In addition, the wheels don’t turn but rather ‘scrub’ which reduces grip and it also has still suspension and stiff tyres. The vehicle is also front wheel drive whilst on the road. Millard submits that all of those factors created a risk of loss of control and instability particularly at speed and, essentially, he should have been directed not to return the Franna by road.
  1. In my view the evidence of Dr Gilmore establishes that the Franna, like a lot of other equipment, is designed for a specific purpose and that the important issue is that operators be skilled in the use of the equipment. There is no doubt that Millard was such a skilled operator. He had numerous qualifications and had extensive experience in driving Frannas. Indeed, Millard gave evidence that he had, in fact, driven this particular Franna in the six months it had been on the site. He also gave evidence that he had driven it on the road on which the accident occurred. He knew the limitations of the vehicle and the need for it to be driven with care. Millard was well aware of the Franna’s capabilities and I accept the submission from counsel for RI-CO that there is no evidence that a ‘risk assessment’ or a special direction from the employer was required in relation to the use of the Franna. Similarly, the accident did not occur because of any lack of procedures.
  1. Whilst Millard was injured on his way home from work I am not satisfied on the balance of probabilities that his injuries resulted in any respect from a breach of any duty owed by the employer in the circumstances in which the accident occurred. Millard was injured when he drove a vehicle from his worksite, without the permission or knowledge of his employer, to his home and crashed into an embankment as a consequence of overcorrecting the Franna as he negotiated a curve on the road. Whilst he was not driving above the speed limit Millard was obviously driving too fast for the conditions he found himself in when a vehicle approached from the opposite direction. Millard clearly lost control of the vehicle.
  1. I am not satisfied that Millard was injured as a result of exposure to a risk that was reasonably foreseeable by RI-CO. I would adopt the conclusions of de Jersey CJ in Williams v Mt Isa Mines Limited,[89]  where he stated:[90]

“[15] My conclusions are these: the vehicle was appropriate for safe and effective work within the defendant’s business; the particular method of safely exiting from the vehicle was a matter of commonsense which could reasonably be left to the individual employee; it was significant that such incidents had not previously occurred, although this operation had been carried out regularly by many employees over a substantial period; the plaintiff exited the vehicle using what he believed to be a safe procedure, and one which he had used without incident many time previously; the plaintiff’s slipping was simply a misadventure for which the defendant cannot be held liable; there was here no unnecessary risk of injury which reasonably obliged the defendant to take any particular step, whether with respect to the layout of the vehicle, by instruction to the plaintiff or otherwise.” (my emphasis)

  1. In my view, the Franna was suitable and appropriate for safe and effective work at the Acland site. I am not satisfied that Millard was injured as a result of RI-CO’s negligence or as a consequence of its breach of the terms of his employment with them.
  1. I would therefore give judgment for the defendant, RI-CO.

Damages

  1. Despite my conclusion that there should be judgment for RI-CO, I am still required to assess the quantum of damages. All of the injuries occurred in 2007 prior to the amendments to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) in relation to the assessment of damages.  
  1. There is no doubt that Millard suffered serious injuries which are set out in detail in paragraph [104] above. I accept Millard’s summary of the injuries as follows:

(i)  head injury;

(ii)  facial fracture underneath the right eye;

(iii) damage to the right eye;

(iv) musculo-ligamentous injury to the neck;

(iv) broken ribs;

(vi) fractured T11 (less than 25% compression fracture);

(iv) fractured L1 (less than 25% compression fracture);

(iv) right shoulder injury; and

(iv) right foot and ankle injury requiring a fusion.

  1. Whilst Millard had some pre-existing conditions including a triple bypass in 2000 and some industrial deafness both those conditions had been disclosed to RI-CO. In any event I do not consider that those conditions have exacerbated or impacted on the injuries suffered in the accident to any extent.

Pain and suffering

  1. I accept that Millard was hospitalised for more than two weeks and indeed was in a coma for six or seven days. I also accept that he had significant facial and right orbital injuries which required surgery by a Maxillo-facial surgeon and eye surgeon. He had surgery to reconstruct his right eye and has been left with some visual and sensory disturbance to the right side of his face. He also had some significant fractures which have left him with pain including in his right shoulder and his right foot. He also required dental treatment.
  1. Given the severity of his injuries, the period of his hospitalisation, and the fact he was in a wheelchair for several months and then on crutches, I consider that the figure of $80,000 is appropriate.

Interest on pain and suffering

  1. Interest on $40,000 at 2% for 7 years and 2 months is $5,733.60.

Special damages

  1. Special damages in an amount of $44,607.71 have been admitted, which comprises WorkCover refunds, including hospital expenses of $4,000.80, medical expenses of $31,937.74, rehabilitation expenses of $8,479.82 and Medicare refund of $189.35. I would allow $44,607.71.

Medical expenses

  1. Due to the accident, Millard has also accrued medical expenses relating to general practitioner and specialists appointments, medications, medical equipment and more expensive prescription glasses. His medical expenses were substantially paid by WorkCover, as I have outlined above, but he also claims an amount of $2,000 over and above the amount paid by WorkCover. I will allow that amount.

Past Wages

  1. Millard claims the amount of $383,844.00 in past wages. That is the difference between amount that he claims that he would have earned in the 373 weeks between 7 February 2007 and 14 April 2014 ($975,200), had he continued at the rate he was being paid at the time, and the amount he actually earned during this time of $591,356.00. In my view, the last seven years needs to be broken into two separate periods, the first 14 months when he was unable to work and the subsequent six years when he was able to work.

The 14 months post accident

  1. At the time of the accident, Millard was earning $47.00 an hour during ordinary hours as well as penalty rates for hours worked outside normal working hours. Millard’s average income with RI-CO was $2,520.72 per week. The evidence is that Millard’s contract with RI-CO would have completed around the time of the accident but it is fairly likely he would have been employed on another contract for another job, probably as a site supervisor. There is no indication it would have commenced immediately on completion of the Acland project.
  1. Millard’s annual earnings since 2004 as shown in Exhibit 18 are set out below:

 

Year

Gross/Year

Nett/Year

Nett/Week

2004

$95,217.00

$63,658.01

$1,224.19

2005

$96,560.00

$65,464.80

$1,258.94

2006

$146,933.00

$94,324.49

$1,813.93

2007

$214,629.00

$137,695.95

$2,648.00

2008

$149,036.00

$102,321.60

$1,967.72

2009

$106,695.00

$78,017.00

$1,500.33

2010

$84,352.00

$64,848.24

$1,247.08

2011

$159,090.00

$112,276.70

$2,159.17

2012

$134,030.00

$96,488.90

$1,855.56

2013

$146,144.00

$104,123.72

$2,002.38

  1. Prior to the accident, Millard had been a site supervisor at times but was not always able to obtain that type of employment and had worked in a variety of roles. Millard stated that he had been a site supervisor at Caltex power station from 2005 – 2006 and from 2003 until 2005 he had been the site supervisor for Radius Cranes and Rigging on the Qantas hangar in Brisbane.[91] It is clear form the table above that Millard’s income fluctuated before the accident and really reached a peak in the year of the accident. 
  1. Millard returned to work approximately 14 months after the accident. Exhibit 19 is a record of his work history since the accident which indicates he has held 12 jobs since the accident. Most of that employment has been as a crane driver, as well as some jobs as a crane supervisor. He has not been employed as a site supervisor since the accident. The question which needs to be answered is whether Millard would have continued to be employed as a site supervisor long term. Millard’s evidence was that an engineer was supposed to have been employed at Acland but when he failed to appear he became second in charge. It would seem to me that it was not a foregone conclusion that he would have necessarily employed as a site supervisor into the future. He was working as a site supervisor due to a particular set of circumstances.
  1. Millard claimed that in the weeks prior to the accident, he had been in discussions with Perkins regarding further work for RI-CO for a period of 3 months at Wivenhoe Dam. Further work at a project at Lake Lindsay had also been discussed which would have been for approximately 12 to 18 months[92] as a site supervisor.[93] He was of the view that, had there been no accident, he would have continued in supervisory work, rather than going back to crane driving.[94]
  1. In cross-examination, Perkins stated that in relation to Lake Lindsay the job had been subcontracted to a subcontractor because “technically it was quite a difficult job so from the part of a risk management process I got some specialists to do the job.”[95]
  1. When asked how the accident affected his ability to look for supervision work, he stated that he was “probably more temperamental with the responsibilities required of a supervisor. If you’re a supervisor on some of those jobs, then you’re joining on the spot and you’re the first one they want to hang when something goes wrong.”[96] Millard acknowledged that he had applied for some supervisor jobs since the accident.[97] On one occasion where Millard applied for a rigging supervisor position but obtained a position as a crane operator, Millard acknowledged that he obtained the crane driver position because there only the need for one supervisor and he had a “crane ticket” and the other candidate, Mr Brett Zillman did not.[98]
  1. It would seem to me that the evidence indicates that had Millard not been injured he would have been employed by RI-CO until early 2008. I accept that it is probable that he would have had the prospect of fairly secure employment with RI-CO for at least 12 months of the 14 months he was unable to work due to his injuries from the accident. I note RI-CO went into liquidation in 2009. I consider that there necessarily been some down time between finishing Acland, commencing Wivenhoe and then commencing Lake Lindsay. Whilst he had a ‘permanent’ position with RI-CO it was only for the period of the contract at Acland. I consider that in the 14 month post accident period it is likely he would have had two months in total off work in between contracts. In my view, it is likely that he would have had employment as a site supervisor with RI-CO at least until early 2008. Accordingly, I would allow $2,600 per week for 52 weeks, which is $135,200 for the 14 month period he was unable to work

The last six years

  1. In terms of his employment since his return to work in May 2008 Millard argues that he has suffered a loss because he would have continued to have been paid $2,600 per week had he not been injured. He argues that he has not received that wage due to his injury. It is argued that whilst he has returned to the workforce and has been in paid employment he can no longer command the wages he previously was able to obtain as a site supervisor.
  1. Apart from the fact that RI-CO went into liquidation, I am not certain that Millard would necessarily have continued in a supervisory position long term given the overall contraction in work in the mining industry and the competition for work in recent years. It is clear that in the last six years since his return to work he has, in fact, worked in a variety of roles and his wages have fluctuated. He has a history prior to his injury of working in a variety of roles and for his wages to fluctuate.
  1. It is commendable that Millard has returned to work given his age and the serious injuries he sustained. He is obviously a hard worker and he has returned to work due to his determination to return despite his injuries and he has done remarkably well. I agree with counsel for RI-CO, Mr Myers, that Millard has indeed been stoic! Whilst I am prepared to accept that there has been some diminution in his earning capacity in the last six years, I am not satisfied it has been major, given he is now earning more than he has ever earned before. I would allow $10,000 per year for the last 6 years which is $60,000.
  1. The total figure for loss of past wages is therefore $195,200.

Interest on Past Wages

  1. The WorkCover Payment Recovery Report dated 29 August 2009,[99] indicates that WorkCover made compensation payments of $2,266 per week from the date of the accident on 9 February 2007 until 28 April 2008, which is almost 15 months. An amount of $197,432.80 was paid. Whilst the recognised rate for interest on past economic loss is 5% per annum. It would seem to me that as the amount paid exceeded the amount to be recovered of $195,000 there would be no interest payable.

Past Superannuation

  1. Millard has claimed 9% for past superannuation. I would allow $17,568, using the following calculation: 9% of $135,200 for one year only, which equals $12,168 plus 9% x $10,000 for six years which is $5,400.
  1. Interest on Past Superannuation
  1. I would allow interest on past superannuation of 5% on $12,168 for one year which is $608.40 plus 5% of $5,400 for six years which is $1,620. I would allow a figure of $2,228.40.

Future Wages

  1. Millard is currently 66 years of age. In his evidence, he stated that “if I was healthy, I’ve always planned on working till I was about 70.”[100] When asked if these plans had changed since the accident, he stated that “as far as I’m concerned, I haven’t changed. I’ll still try and work till I’m 70.”[101]
  1. Given the wages Millard is currently commanding and his current determination to continue working, he may well work until 70. However, he has suffered some significant injuries and does experience ongoing pain. An amount of future loss of wages for 1 year has been claimed. I would allow the amount of $150,000 as a global figure for loss of future wages.

Future Superannuation

  1. I would allow loss of future superannuation of 9% of $150,000 which is $13,500.00.

 

  1. A Fox v Wood figure of $68,395 has been agreed.

Pain and suffering

 

80,000.00

Interest on pain and suffering

2% x $40,000 ($80,000 x 50%) x 7.167 yrs

5,733.60

Expenses

 

2,000.00

Special Damages

WorkCover

(i)    Hospital            $4,000.80

(ii)    Medical         $31,937.74

(iii)   Rehabilitation  $8,479.82

(iv)   Medicare             $189.35

 

44,607.71

Loss of past wages

$2,500 x 52 wks = $135,200 + $10,000 x 6 yrs = $60,000

195,200.00

Interest on past wages

 

0.00

Loss of past Superannuation

9% x $135,200 x 1 yr = $12,168

9% x $10,000 x 6 yrs = $5,400

17,568.00

Interest on loss of Past Superannuation

5% x $12,168 x 1 yr = $608.40 + 5% x $5,400 x 6 yrs = $1,620

2,228.40

Future loss of Wages

Global allowance

150,000.00

Future loss of Superannuation

9% x $150,000

13,500.00

Future expenses

Global allowance

15,000.00

Fox v Wood

 

68,395.00

Subtotal

 

$594,232.71

Less WorkCover payments

 

-358,819.05

TOTAL

 

$235,413.66

  1. I will hear from counsel as to orders as to costs. UII

Footnotes

[1] Transcript 1-56 at ll 15-18.

[2] Exhibit 3.

[3] Transcript 1-61 at ll 41- 47.

[4] Transcript 1-60 at ll 9-10.

[5] Transcript 1-59 at l 22.

[6] Transcript 1-67 at ll 1-5.

[7] Transcript 1-67 at l 15.

[8] Transcript 1-67 at ll 44-46.

[9] Transcript 1-69 at l 15.

[10] Transcript 1-61 at ll 22-23.

[11] Transcript 1-61 at l 31.

[12] Transcript  1-61 at l 36.

[13] Transcript, 1-62 at l 40 – 1-63 at 1 27.

[14] Transcript 1-63 at ll 30-40.

[15] Transcript 1-64 at l 42.

[16] Transcript  3-54 at l 24.

[17] Transcript 3-54 at l 21.

[18] Transcript 3-53 at ll 36-47.

[19] Transcript 3-54 at ll 28-33.

[20] Transcript 3-73 at ll 21-32.

[21] Transcript 3-120 at ll 19-24.

[22] Transcript 3-120 at ll 29-31.

[23] Transcript 3-120 at ll 39-40.

[24] Transcript 3-120 at ll 43-46.

[25] Transcript 3-120 at ll 33-35.

[26] Transcript 3-138 at l 40.

[27] Transcript 3-121 at l 23.

[28] Transcript 3-137 at ll 44-45.

[29] Transcript 3-138 at ll 1-12.

[30] Transcript 4-3 at ll 41-42.

[31] Transcript 4-4 at ll 8-12.

[32] Transcript 4-4 at l 35 – 4-5, l 9.

[33] Transcript 4-5 at ll 40 -47 and 4-6 at ll 1-3. 

[34] Transcript 3-38 at ll 16-23. 

[35] Transcript 3-27 at l 38.

[36] Transcript 3-36 at l 14.

[37] Transcript 3-34 at 13-18.

[38] Transcript 3-28 at  ll 41-42.

[39] Transcript 3-42 at l 46.

[40] Transcript 1-84 at ll 11-16.

[41] Transcript 3-121 at l 28.

[42] Transcript 3-121 at ll 36-43.

[43] Transcript 4-19 at ll 2-5.

[44] Transcript 3-31 at l 46 – 3-32 at l 2.

[45] Transcript 3-122 at ll 1-15.

[46] Transcript 4-18 at ll 18-39.

[47] Transcript 2-36 at ll 29 – 20.

[48] Transcript, 1-67 at ll 44-46.

[49] Transcript, 1-67 at ll 25-28.

[50] Transcript, 1-67 at ll 39-40.

[51] Transcript, 2-59 at ll 10-11.

[52] Transcript, 2-59 at ll 18-23.

[53] Transcript, 2-78 at ll 15-17.

[54]  Exhibit 31.

[55] Transcript, 2-89 at ll 21-29.

[56] Transcript 4-9 at ll 38-40.

[57] Transcript 4-10 at ll 45-46.

[58] Transcript 4-12 at ll 14-16.

[59] Transcript 4-12 at ll 19-21.

[60] Transcript 4-14 at ll 28-29.

[61] Transcript 4-14 at l 31.

[62] Transcript 4 -14 at ll 34-39.

[63] Transcript 4-15 at ll 27-31.

[64] Transcript 4-15 at ll 39-40.

[65] Photograph at Exhibit 6.8.

[66] Transcript 3-103 at ll 11-15.

[67] Transcript 3-84 at ll 26-29.

[68] Transcript 3-81 at ll 32-34.

[69] As shown in Exhibit 6.8.

[70] Transcript 3-93 at l 44 – 3-94 at l 3.

[71] Transcript 3-104 at ll 34-38.

[72] Transcript 3-105.

[73] Transcript 2-3 at l 34.

[74] Transcript 2-3 at ll 22 – 25.

[75] Exhibit 32 at 4.

[76] Exhibit 32 at 6.

[77] Exhibit 32 at 5.

[78] Exhibit 32 at 6.

[79] Exhibit 32 at 8.

[80] Ibid.

[81] Ibid.

[82] Transcript 2 -114 at ll 21-28.

[83] Transcript 2-112 at ll 15-21.

[84] Transcript 2-114 at ll 42-45.

[85] (1984) 154 CLR 672; [1984] HCA 61.

[86] (1984) 154 CLR 672 at 679 – 680.

[87] [2005] HCA 14; (2005) 79 ALJR 839 (6 April 2005).

[88] [2005] HCA 14 at [12].

[89] [2000] QSC 161.

[90] [2000] QSC 161 at [15].

[91] Transcript 1-103 at ll 33-35.

[92] Transcript 1-101 at ll 21-22.

[93] Transcript 1-101 at ll 24-25.

[94] Transcript 1-102 at ll 21-23.

[95] Transcript 3-124 at ll 31-34.

[96] Transcript 1-102 at ll 38-40.

[97] Transcript 1-102 at ll 43-44.

[98] Transcript 1-103 at ll 20-26.

[99] Exhibit 15.

[100] Transcript 1-104, ll 3–4.

[101] Transcript 1-104, ll 7–8.

Close

Editorial Notes

  • Published Case Name:

    Millard v RI-CO (2004) Pty Ltd (In liq)

  • Shortened Case Name:

    Millard v RI-CO (2004) Pty Ltd (In liq)

  • MNC:

    [2014] QSC 79

  • Court:

    QSC

  • Judge(s):

    A Lyons J

  • Date:

    15 Apr 2014

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Czatyrko v Edith Cowan University [2005] HCA 14
3 citations
Jump To
Cite 1 - [2005] HCA 14
Cite 2 - [2005] HCA 14
Cite 3 - [2005] HCA 14
Czatyrko v Edith Cowan University (2005) 214 ALR 349
1 citation
Jump To
Cite 1 - (2005) 214 ALR 349
Czatyrko v Edith Cowan University (2005) 79 ALJR 839
2 citations
Jump To
Cite 1 - (2005) 79 ALJR 839
Cite 2 - (2005) 79 ALJR 839
Kondis v State Transport Authority (1984) 154 CLR 672
4 citations
Jump To
Cite 1 - (1984) 154 CLR 672
Cite 2 - (1984) 154 CLR 672
Cite 3 - (1984) 154 CLR 672
Cite 4 - (1984) 154 CLR 672
Kondis v State Transport Authority [1984] HCA 61
2 citations
Jump To
Cite 1 - [1984] HCA 61
Cite 2 - [1984] HCA 61
Williams v Mount Isa Mines Limited [2000] QSC 161
3 citations
Jump To
Cite 1 - [2000] QSC 161
Cite 2 - [2000] QSC 161
Cite 3 - [2000] QSC 161

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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