Federal Capital Press of Australia Pty Limited v Australian Systems Integrators Pty Limited and Botany Cranes and Fork Lift Services Pty Limited [1996] ACTSC 49 (31 May 1996)

SUPREME COURT OF THE ACT

FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED v. AUSTRALIAN SYSTEMS
INTEGRATORS PTY LIMITED and BOTANY CRANES AND FORK LIFT SERVICES PTY LIMITED
No. SC 327 of 1988
Number of pages - 15
Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ(1), GALLOP(2) AND HIGGINS(3) JJ

CATCHWORDS

Appeal - appeal against decision of Master - property damage - computer equipment damaged in transportation - defendant's employees' duty to supervise installation - whether scope of that duty, as found by Master, an error of law - based on Master's view of the inherent probabilities - no error of law.

Uranerz v Hale (1980) 30 ALR 181

Baker v Thorpe (1985) 65 ACTR 1
Proestos v Canberra Rex Hotel Pty Limited (1985) 64 ACTR 110
Shaw v Donaldson (1988) 78 ACTR 1
Mattingley v Tuckwood (1989) 88 ACTR 1
Titan v Babic, unreported, Full Court, Supreme Court of the Australian

Capital Territory, Miles CJ, Gallop and Higgins JJ, 19 June 1992
Lavery v Austwork Pty Limited, unreported, Full Court, Supreme Court of the Australian Capital Territory, Miles CJ, Gallop and Higgins JJ,

HEARING

CANBERRA, 1 April 1996
31:5:1996

Counsel for the Plaintiff/Appellant: Mr L King, SC with
Mr S Campbell

Instructing solicitors : Curwood and Partners by their
Agents Nimmo Tigwell Clarke

Counsel for the First Defendant : Mr B Meagher

Instructing solicitors : Blake Dawson Waldron

ORDER

THE COURT ORDERS THAT:

The appeal be dismisssed with costs.

DECISION

MILES CJ I agree, for the reasons advanced by Higgins J., that this appeal should be dismissed with costs.

GALLOP J This is an appeal from a judgment of the Master in favour of the respondent in an action for property damage which occurred when an item of computer equipment fell from a fork lift truck on the appellant's premises.

2. The appellant instituted proceedings against the first defendant for breach of its duty of care in the installation of the item of computer equipment. There was a second defendant which provided fork lift trucks and operators in the course of its business. It owned the fork lift truck that was involved in the accident and employed Mr Christensen, the driver. The appellant discontinued its action against the second defendant but the first defendant served upon it a third party notice claiming contribution or indemnity. The third party did not enter an appearance and was not represented at the trial of the action, although Mr Christensen was called as a witness for the appellant.

3. There were competing versions before the Master of how the computer equipment was damaged. On the one hand there was the evidence of Mr Christensen and on the other there was the evidence of the two engineers employed by the respondent. The Master had to choose between the two versions of the accident. It was common ground that the damage to the equipment totalled $33,846.22.

4. The Master's approach was to find that all the witnesses seemed to be doing their best to recall and recount the happenings of 10 years ago as best they could, and that the inherent probabilities provided the solution. In the end he chose the version given by Mr Lecomte, who was one of the engineers employed by the respondent, and rejected the version given by Mr Christensen, the fork lift driver.

5. There was nothing inherently improbable about the evidence of Mr Lecomte. The Master related that evidence as follows:

"On the morning of the accident he had travelled from Sydney by
car with Mr. Cordero, the more senior of the two customer field
engineers. They arrived at the plaintiff's premises at about mid
morning. Most of the equipment had been unloaded from the truck.
They gave directions about the position inside the building where
they wanted the various items of equipment placed. At lunch time
the employees of the plaintiff left. Mr. Christensen did not go
with them. The weather was threatening. The engineers decided
to continue to get the equipment inside.

One of the last items to be moved was the tape drive cabinet, the
subject of this action. Mr. Christensen was asked to move it to
the platform. The cabinet was sitting on a pallet. Mr.
Christensen inserted the tines of his fork lift inside the
pallet. He then lifted the equipment about six inches from the
ground and drove to the platform. He and Mr Cordero were not
holding the equipment as it was moved to the platform. They went
up the stairs on to the platform. The fork lift then lifted the
cabinet to the height of the platform and lowered the pallet on
to the platform.

The cabinet had wheels. In order to move it inside the building
it was necessary to take the pallet from underneath it. The fork
lift moved back, changed the position of the tines, and moved
forward, setting the tines between the cabinet and the pallet.
It then lifted the cabinet, laving the pallet on the platform.
He and Mr. Cordero slid the pallet from underneath the cabinet.

His evidence continued:

'MR ARTHUR: What happened then?---Then the driver of the
fork-lift commenced his descent in order to rest the tape
drive cabinet on platform. There was jerking, or very
sudden descent. There may be a slight jerking up followed
by a very sharp fast descent and a very abrupt stop of the
fork-lift before it reached the ground - before it reached
the ground. Consequently, after that event, the tape drive
cabinet went over - fell over on my side. The event
happened very, very quickly.

MASTER: Fell over on its side?---On its side. It fell
over on the right side of the fork-lift driver.

But up on the platform, not down on the - - -?---On the
platform missing me by very, very little.

MR ARTHUR: Did you move?---If I didn't I probably
wouldn't be here today.

When the tape drive toppled over, where did it land?---It
landed on the platform.'

He insisted that the equipment did not fall on the ground in the
position marked by Mr. Abbott."

6. The Master also set out the contents of a written statement made by Mr Lecomte in September 1988.

7. In finding that the accident happened in the way described by Mr Lecomte, the Master concluded that there was in that occurrence no fault on the part of either Mr Lecomte or the other engineer employed by the respondent, Mr Cordero.

8. The finding of fact by the Master that the accident happened in the way described by Mr Lecomte was not challenged by the appellant on the hearing of the appeal. The issues raised by the appellant were:

(1) the content of the respondent's duty to supervise the
movement of the computer equipment from the delivery point to
the installation site, both within the appellant's premises;
and
(2) whether the breach of that duty by the respondent caused
or materially contributed to the loss suffered by the
appellant.

9. It was submitted on behalf of the appellant that on the evidence the respondent owed to the appellant a duty to supervise the movement of the equipment from the delivery point to the installation site. The evidence to support the existence of such a duty was contained in the written contract between the parties and the admission by the respondent in answer to interrogatories. Counsel for the appellant went on to refer to dictionary meanings of the word "supervise" and submitted that the Master erred in attributing a narrow meaning to the duty to supervise.

10. The scope of the duty to supervise was, of course, a question of fact. The Master made a finding about the scope of the duty in the following terms:

"The responsibility of Mr. Cordero and Mr. Lecomte was primarily
to install the equipment. In order to do so they had to ensure
that the principal parts of it were located in the proper place,
and in proper order. No doubt, had someone begun to move on its
side equipment that could only be safe while vertical, they could
and would have protested. They were entitled to ask that one
item be moved before another, and to specify where it should be
taken. To that extent they were supervising the movement of the
equipment, and in that sense the answers to interrogatories were
accurate. It does not follow that they were in control of the
whole movement, in the sense of controlling the servant of the
company that had contracted to do the moving, or of telling the
fork lift driver how to do his job."

11. There is no basis upon which this Court would be justified in interfering with that finding of fact. It was based upon the Master's view of the inherent probabilities. It was not inconsistent with established facts or so improbable that no reasonable person could accept it, and it was not disclosed that the Master was affected by some error of law or fact (Uranerz v Hale (1980) 30 ALR 181 at 193). That decision has been consistently followed by this Court in Baker v Thorpe (1985) 62 ACTR 1; Proestos v Canberra Rex Hotel Pty Limited (1985) 64 ACTR 110; Shaw v Donaldson (1988) 78 ACTR 1; Mattingley v Tuckwood (1989) 88 ACTR 1; Titan v Babic (unreported decision of this Court delivered 19 June 1992); and Lavery v Austwork Pty Limited (unreported decision of this Court delivered 24 March 1995).

12. It follows that, having so defined the scope of the respondent's duty to the appellant, the Master did not err in declining to find that the respondent was acting in a supervisory capacity so as to make it responsible for the default of the fork lift driver. Nor has it been established that there was any error in the Master's decision not to hold that the respondent owed to the appellant a duty of care in the control of the operation of the fork lift.

13. In my opinion, the appeal should be dismissed with costs.

HIGGINS J This is an appeal from a decision of Master Hogan handed down on 22 June 1995.

2. The respondent was the firstnamed of two defendants sued by the appellant as plaintiff in both tort and contract. At the hearing, the issue was confined to tortious liability. At issue was responsibility for damage done to a tape drive cabinet which the plaintiff/appellant had purchased from the firstnamed defendant/respondent.

3. The facts and evidence before the Master are set out fully in his reasons as follows,

This is an action for damages arising from an accident that occurred on 15 September 1985, in which an item of computer equipment fell from a fork lift truck at the plaintiff's premises. The parties are agreed that if the plaintiff succeeds the damages that it should recover are $33,846.22.

The first defendant is an Australian company, which is a wholly owned subsidiary of an American corporation. The American corporation had contracted to install a computerised type setting system in the premises of the plaintiff in Canberra, and had assigned performance of the work of installing the equipment to the first defendant.

The second defendant is a company which provides fork lift trucks and operators in the course of its business. It owned the fork lift truck that was involved in the accident, and employed Mr Christensen, the driver. The plaintiff discontinued its action against the second defendant, but the first defendant served upon it a third party notice claiming contribution or indemnity from it. The third party did not enter an appearance, and was not represented at the hearing, although Mr Christensen was called as a witness for the plaintiff.

The plaintiff originally pleaded its case both in contract and in tort. At the end of the plaintiff's case counsel for the plaintiff abandoned the contract claim. Nevertheless the relationship between the plaintiff and the American corporation, and between that corporation and the first defendant and the two employees of the first defendant are facts that are material to the existence and extent of the duty of care, if any, that was owed by the first defendant to the plaintiff in the installation of the equipment.

There was no evidence about which party, if any, employed the third party. However Mr Christensen gave evidence that he was directed to perform some work with his fork lift truck at the plaintiff's premises at Mort Street in Canberra. When he arrived there was a truck there with crates and boxes on it. Someone understood by him to be connected with the plaintiff told him to unload the articles from the truck, but not to unpack any boxes until two engineers arrived. The larger articles had a timber frame underneath, similar to a pallet. He proceeded to assist in the unloading of the truck with his fork lift. The articles were placed on the ground in an area near a loading dock attached to a temporary building within the plaintiff's premises.

The two engineers from the first defendant arrived. He said that they took the carton off one of the items. It was standing on castors. He was asked to lift the computer off the ground and move it to the loading dock while they walked alongside to hold it and prevent it from toppling over. He did so and moved the computer over to the loading dock. He said that as he did so the tines of his fork lift were only a few inches off the ground. The two engineers were holding each side of the computer. When he got to the platform one of the engineers let go to climb up on to the platform. The other also let go. The computer fell over.

In September 1991 Mr Christensen made a statement to an investigator which read as follows:

1. I was employed as a fork lift operator by Canberra Cranes and Fork Lift Services of Fyshwick in September 1985, when I was directed to a job at the Canberra Times in Mort Street, Braddon on 17 September 1985. I still remember certain things about an accident that occurred that day, although because it was a long time ago my memory is a bit hazy.

2. When I got there I was told to move some boxes out of a truck and to put them on the ground next to the truck.

3. I was told to do no more than this as there were going to be a couple of people coming from Sydney who would supervise the unpacking of the boxes, which I believed contained computer equipment.

4. When these two men arrived they took over total control of the unloading and unpacking.

5. The procedure was that they unpacked the computers from the boxes while they were on the forks of my fork lift and then one held the top and the other held the bottom of the computer whilst my fork lift raised it from the ground level to the level of the platform outside the building where the computers were going.

6. They told me everything I should do and I only followed their directions.

7. When the computer fell it was because they both held the bottom of it when they each thought the other one was holding the top of it.

8. After the computer fell, both of the men accused one another of being at fault and they both said that I wasn't to blame.

The plaintiff also called Mr Abbott, who, in September 1985, was employed by the plaintiff as a printer engineer. With other employees he was directed to go to the Mort Street premises to help to move the computer equipment in to the building there. He was told to work under the direction of the engineers from the first defendant. He arrived at the premises and helped to move some lighter articles into the building. He was given instructions about what to move by the engineers. He went to lunch with his fellow workers. The engineers and the fork lift driver did not go with them. As he was returning from lunch and coming around the corner of the building he heard the noise of the equipment falling, but did not see it happen. He saw the computer lying on the ground, in a position which he marked on the photograph Exhibit B. As being some distance away from the loading dock.

The two engineers of the defendant gave evidence. The first was Mr Lecomte. On the morning of the accident he had travelled from Sydney by car with Mr Cordero, the more senior of the two customer field engineers. They arrived at the plaintiff's premises at about mid morning. Most of the equipment had been unloaded from the truck. They gave directions about the position inside the building where they wanted the various items of equipment placed. At lunch time the employees of the plaintiff left. Mr Christensen did not go with them. The weather was threatening. The engineers decided to continue to get the equipment inside.

One of the last items to be moved was the tape drive cabinet, the subject of this action. Mr Christensen was asked to move it to the platform. The cabinet was sitting on a pallet. Mr Christensen inserted the tines of his fork lift inside the pallet. He then lifted the equipment about six inches from the ground and drove to the platform. He and Mr Cordero were not holding the equipment as it was moved to the platform. They went up the stairs on to the platform. The fork lift then lifted the cabinet to the height of the platform and lowered the pallet on to the platform.

The cabinet had wheels. In order to move it inside the building it was necessary to take the pallet from underneath it. The fork lift moved back, changed the position of the tines, and moved forward, setting the tines between the cabinet and the pallet. It then lifted the cabinet, leaving the pallet on the platform. He and Mr Cordero slid the pallet from underneath the cabinet.

His evidence continued:

MR ARTHUR: What happened then?---Then the driver of the fork lift commenced his descent in order to rest the tape drive cabinet on platform. There was jerking, or very sudden descent. There may be a slight jerking up followed by a very sharp fast descent and a very abrupt stop of the fork lift before it reached the ground - before it reached the ground. Consequently, after that event, the tape drive cabinet went over - fell over on my side. The event happened very, very quickly.

MASTER: Fell over on its side?---On its side. It fell over on the right side of the fork lift driver.

But up on the platform, not down on the - - -?---On the platform missing me by very, very little.

MR ARTHUR: Did you move?---If I didn't, I probably wouldn't be here today.

When the tape drive toppled over, where did it land?---It landed on the platform.

He insisted that the equipment did not fall on the ground in the position marked by Mr Abbott.

In September 1988 Mr Lecomte made a written statement about the incident, which contained the following description of it:

On the day in question the hardware was off-loaded from a truck contracted by Federal Capital Press, the hardware being placed on the ground in a carpark adjacent to the complex. After the hardware was off-loaded staff of Federal Capital Press uncrated the hardware, Ernie and my function merely to ensure that no-one took off or removed warning signs or cover plates unnecessarily. After the uncrating took place all the equipment was left totally exposed in the carpark as each piece of equipment was moved to the designated position. There were numerous staff of Federal Capital Press involved, as well as staff of Federal Capital Press looking at the equipment and everyone appeared to be in charge. The weather was windy and cloudy and both Ernie and I were concerned at the potential of rain. There was a fork lift driver present, from my recollection he appeared in his forties and he drove the fork lift and moved all the equipment. Both Ernie and I were under the impression that the fork lift driver was an employee of Federal Capital Press Pty Limited. I only now learning that he was in fact an employee of Botany Cranes and Fork Lift Services Pty Limited. Throughout the morning the equipment was moved at the direction of Federal Capital Press staff and nothing untoward occurred to cause our intervention. Our principle involvement was to advise Federal Capital Press on such matters as not letting machines be placed on their sides and which equipment could not be dropped and which equipment must remain vertical. About lunchtime all the staff, with the exception of the fork lift driver went to lunch and disappeared with the System 55 Tape Drive Cabinet still standing in the carpark, exposed to the wind, dust, cars and possibly rain. Ernie and I asked the fork lift driver what was happening, commenting that the system didn't appear safe. The fork lift driver then said he would move the fork lift into position and lift the tape drive but at no time did either of us direct him to do so. The fork lift driver then lifted the tape drive and asked Ernie and I to pull out a pallet on which the tape drive had been sitting. At first the fork lift did not lift the tape drive high enough and so he raised it a little bit more but in so doing jerked the whole unit. I think that the tines of the fork lift jumped a few links but in any event the tape drive fell sideways almost crushing me. I believe that this incident was caused by the driver not positioning the tines in the centre of the unit but it may have been because of the mechanical state of the fork lift.

Mr Cordero confirmed that he and Mr Lecomte arrived at the plaintiff's premises in mid morning and that they and Mr Christensen were there alone at lunch time. The tape drive cabinet was on a pallet on the ground. The fork lift driver put the prongs of the fork lift into the pallet and carried the cabinet to the loading dock. He and Mr Lecomte climbed on to the dock, and the fork lift lowered the pallet on to the dock. The fork lift reversed, and then came forward, putting the prongs under the cabinet, above the pallet.

His evidence continued:

MR ARTHUR: The fork lift comes in, puts the prongs under the cabinet, what happens then?---The fork lift lifted it and when it was there it stopped. Pierre and I moved in to move the pallet out of the cabinet and then before I knew it, the fork lift driver lifted it a bit more and it jerk and I shouted, "Pierre" and that's about - Pierre just looked up and saw that thing falling down on him and just moved out.

You said that the fork lift jerked. Prior to that jerking, did you say anything to the driver?---No.

It just jerked?---There was no words mentioned. The fork lift driver just move it upwards and it didn't move upwards, it just do - did like that.

Where did you have your hands at the time?---I had my hands on the pallet, we were crouching there, moving the pallet up.

He also made a written statement, in May 1986, which read as follows

- On _________ we went to Canberra to assist on unloading the computer equipments. - About mid-day the Canberra Times men have left for their lunch, and one crate (tape drive) was left opened on the yard. - The fork lift driver, P. Lecomte, and myself has decided that its not safe to leave it there in case it rains. - The fork lift driver lifted the pallet with the tape drive cabinet on the loading ramp. - He then inserted the forks right underneath the cabinet so that Pierre and myself could remove the pallet underneath. - He raised it a few inches, so Pierre and I tried to remove the pallet from underneath the cabinet. - It was while we are removing the pallet, that the fork lift driver raised the tape drive cabinet a bit more; the tape drive cabinet suddenly tilted, and fell on the ground, narrowly missing Pierre.

4. The Master was satisfied that all four eye witnesses were doing their best to give truthful and accurate evidence. However, he considered the version of the facts given by Mr Lecomte to be inherently more probable than any competing version.

5. On that basis, he concluded that no fault had been established on the part of Mr Lecomte or Mr Cordero and that, consequently, the respondent was not liable for the damage caused to the tape drive cabinet.

6. The plaintiff, on the hearing of this appeal, relied on two contentions. The first was that the Master erred in preferring Mr Lecomte's evidence to that of the fork lift driver, Mr Christensen. The second was that, in any event, Mr Lecomte and Mr Cordero had a duty of supervision which extended to instructing Mr Christensen as to the manner in which the cabinet was transported.

The evidence of Mr Lecomte
7. Mr Christensen gave evidence that the computer items had generally required steadying when transported from an area near the truck on which they had arrived to the loading dock. In relation to the cabinet, he said,

When I got to the platform, they were holding either
side of the computer (that is, the cabinet) and then
one let go to climb up on top of the platform and the
other decided to let go as well.

8. Then, he said, the cabinet 'toppled over'. It fell to the ground. There then followed an argument between Messrs Lecomte and Cordero, one saying to the other something to the effect of 'why did you let go of the bloody thing for'. One of them also said to him, according to Mr Christensen, 'It's not your fault, don't worry about it'. There were other people present, he said, when the accident happened.

9. The cabinet had been on a pallet before being moved. It was lifted off the pallet before being transported to the loading dock, according to Mr Christensen. Messrs Lecomte and Cordero said it was not lifted off the pallet until after it was placed on the loading dock.

10. Mr Christensen conceded that it would have been better to have moved the cabinet whilst it was still on the pallet. However, he asserted that it was the decision of Messrs Lecomte and Cordero to do it the other way.

11. The evidence, said to support Mr Christensen's version of events, was that of Mr Lindsay Abbott, a printer's engineer employed by the plaintiff. He regarded his role as accepting instructions from the first defendant's representatives as to the installation in the premises of the computer equipment.

12. He was, however, not present when the cabinet fell off the fork lift. He did hear it, however. He said, he heard,

Just a loud thump and some associated noises as well,
then voices raised in acrimony I guess you'd say.

13. Those voices he identified as those of 'the two young gentlemen who were in charge of supervising the computer installation'.

14. He attended the scene, attracted by the commotion. There he observed,

Part of the computer equipment - I believe it was a tape
drive - was lying on the ground and the two young gentlemen
previously discussed were arguing with each other.

15. Mr Abbott was asked to recount the terms of the argument. He said,

Each said the other was supposed to hold on to the top of the
unit and they both bent over at the same time and they both
accused each other of being idiots for grabbing the bottom
because they were both at the bottom instead of one of them
at the top and one at the bottom of the unit ... subsequently
they said to the fork lift driver, as I recall, basically,
that it wasn't his fault.

16. Whilst there was some difference between the account Mr Abbott gleaned from the conversations he had overheard between Messrs Lecomte and Cordero and that asserted by Mr Christensen, the general thrust of the two witnesses' evidence is consistent. He did not address the question of the location of the pallet.

17. Mr Lecomte gave evidence that he regarded his role and that of his colleague as supervising the installation of the computer equipment provided by their employer, the first defendant. He said of that role,

Not regarding the moving of the equipment; regarding the
position where we wanted the equipment to be finally resting,
yes.

18. The 'position' was important for operational reasons.

19. He denied that he steadied the cabinet at all when it was moved. He saw the fork lift raise the cabinet. He agreed that he and Mr Cordero were on either side of the cabinet as it was moved toward the loading dock or platform, but still on the pallet. He denied they were steadying it.

20. He described the accident in the following terms,

Then the driver of the fork lift commenced his descent in
order to rest the tape drive cabinet on platform. There was
jerking, or very sudden descent. There may be a slight
jerking up followed by a very sharp fast descent and a very
abrupt stop of the fork lift before it reached the ground ...
Consequently, after that event, the tape drive cabinet went
over - fell over on my side.

21. He said that the cabinet fell, not onto the bitumen of the car park but over on the loading platform. He agreed he then swore but denied any conversation with the fork lift driver.

22. The unit, he said, weighed about 300kg. It would, in his view, not have been a good idea to attempt to steady the load. He considered the "jerk" of the descent to have been responsible for the fall of the cabinet.

23. Mr Cordero confirmed that the fork lift had raised the cabinet and advanced towards the loading platform. He said in evidence, that, thereafter,

The fork lift lifted it and when it was there it stopped.
Pierre and I moved in to move the pallet out of the cabinet
and then before I knew it, the fork lift driver lifted it a
bit more and it jerk and I shouted, "Pierre" ... Pierre just
looked up and saw that thing falling down on him and just
moved out.

24. Mr Cordero did not regard it as his task to supervise the movement of the equipment from point of delivery to the point of installation.

25. He also denied holding the cabinet after it had been lifted. He indicated that to do so would, in his view, have been dangerous. He said,

We never approached a moving fork lift, or go anywhere near
those equipment while they are being moved by fork lifts.

26. Mr Cordero also denied that he had argued with Mr Lecomte, absolved the fork lift driver or observed the cabinet fall to the tarmac. He said it fell onto the surface of the loading platform. He had not recorded a reference to the "jerking" in his subsequent written statement.

27. He did concede that,

If somebody was holding it (the cabinet), probably it
wouldn't have fallen.

28. Insofar as the plaintiff's case depended on the acceptance of the version of events given by Mr Christensen and Mr Abbott, it was necessary for that version to have been accepted as the more probable version. The Master was not so persuaded. He was persuaded that the version given by Messrs Lecomte and Cordero was more probable, but it would have made no difference to the result if he had found himself unable to prefer one version to another.

29. There is nothing in the evidence given before the Master, other than the possible effect of the demeanour of the witnesses as to their reliability as opposed to their honesty, which would require one version rather than another to be preferred.

30. It follows that the Master cannot be said to be in error in accepting the version of the event attested to by the defendants' witnesses.

31. For what it is worth, the report of Mr Wallis, the systems manager, refers to the damaged cabinet being observed 'within the storage area', not on the car park surface. That tends to support the version of events offered on behalf of the first defendant.

32. It follows that to have succeeded, the plaintiff needed to have persuaded the Master that, even on their version of events, the first defendant's representatives had failed in their duty to the plaintiff to avoid damage to the cabinet.

The duty to 'supervise'
33. Whilst the plaintiff's claim was based on tort and not contract, the content of the duty it relied upon was that expressed in the Agreement between the plaintiff and the Principal of the first defendant. The relevant clause was 2.4,

Purchaser (plaintiff) is responsible for moving all Hardware
from the Common Carrier's delivery point at Purchaser's
Facility to the Installation Site, but shall do so under the
supervision of SII (first defendant) personnel. Purchaser
shall not unpack or install any of the System components
unless at the direction or under the supervision of SII
personnel. Upon delivery of the Hardware and related System
components to the Installation Site, SII shall uncrate,
physically install and place in working order all System
components. Purchaser shall be responsible for disposal of
all packaging materials related to System Installation.
Purchaser may request SII to make arrangements for such
inside delivery and disposal at Purchaser's expense.

34. An additional relevant circumstance is that the plaintiff chose to engage the second defendant/third party to provide and operate the fork lift.

35. That arrangement was consistent with the terms of clause 2.4.

36. The contention of the plaintiff is that the duty of supervision of the movement of the cabinet included instructing the fork lift driver to strap or secure each load or otherwise to ensure that it was supported so that it could not fall.

37. The term 'supervision' is an ordinary English word. In the context of the operation contemplated by cl 2.4 it indicates a duty to observe attentively and to give directions to avoid any perceived lack of safety to persons or equipment. The role of Messrs Lecomte and Cordero would include, for example, directing whether items of equipment could be moved upright, on their sides, or otherwise, and where and in what order they were to be placed within the plaintiff's premises.

38. The capability or otherwise of the fork lift to carry out their directions and how it could or should be operated was not part of their area of expertise.

39. The operation, according to Messrs Lecomte and Cordero, involved the transportation of the items, still strapped to the pallet, to the loading platform. The fork lift then changed the position of the tines (or prongs) which effected the lift, so as to raise the item off the pallet. The latter was then removed and the item lowered to the surface of the platform. The fork lift then withdrew leaving the item able to be moved on its own castors.

40. The latter lift was less stable than the former as the tines were then closer together.

41. However, it was then only necessary for the load to be raised enough to remove the pallet, then lowered.

42. On the hypothesis the Master assumed, the effective cause of the overbalancing of the cabinet was not that movement per se but an unexpected and, until then, unprecedented jerking of the raising or lowering motion of the fork lift.

43. No doubt, had that jerking been a feature foreseeable to either Mr Lecomte or Mr Cordero, their duty to supervise the movement would have led them to instruct Mr Christensen to avoid such movements. It seems likely that the 'jerking' movement was some form of malfunction of the fork lift.

44. However, in the circumstances, neither Mr Lecomte nor Mr Cordero had any opportunity to avoid the movement which led to the damage to the cabinet. Whether, had they had such an opportunity, they might have misconceived their role and refrained from taking advantage of it is immaterial.

45. In my opinion, the Master was right to conclude, on the facts as he was obliged to assume them to have been, that there had been no breach of any duty the first defendant had towards the plaintiff to supervise the movement of the cabinet in question by the third party.

46. I would dismiss the appeal with costs.