Jacap Low Loaders v Lindores Plant and Equipment [2004] NSWCA 5 (16 December 2004)

CITATION: Jacap Low Loaders v Lindores Plant and Equipment [2005] NSWCA 5

FILE NUMBER(S):

40577/04

HEARING DATE(S): 16 December 2004

JUDGMENT DATE: 16/12/2004

PARTIES:

Jacap Low Loaders Pty Limited

Lindores Plant and Equipment Pty Limited

L.C.R. Lindores Group Pty Limited

JUDGMENT OF: Tobias JA Giles JA Hodgson JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20297/02

LOWER COURT JUDICIAL OFFICER: McDougall J

COUNSEL:

A: K Andrews

R: J Sexton SC

SOLICITORS:

A: A M W Dickinson & Son, Sydney

1 & 2R: Rankin & Nathan, Newcastle

CATCHWORDS:

EVIDENCE - Burden of Proof - Weight and sufficiency of evidence - Proof by bailee that damage to bailed goods occurred without its fault - Cause of damage not established - whether sufficient for bailee to negative negligence for each of several possible causes considered individually.

LEGISLATION CITED:

N/A

DECISION:

Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CCA 40577/04

GILES JA

HODGSON JA

TOBIAS JA

Thursday 16 December 2004

JACAP LOW LOADERS PTY LIMITED v LINDORES PLANT AND EQUIPMENT PTY LIMITED & 1 OR

Judgment

1 TOBIAS JA: This is an appeal from an order of McDougall J of 23 June 2004 whereby his Honour entered judgment for the respondents in the sum of $1,341,710. The facts relating to the matter are not generally in dispute and can be stated in summary form as follows.

2 As at 6 July 2001, the respondents leased a Leibherr 90 tonne mobile crane, serial number 63079 and registered number 434FOK, to which I shall refer as the crane. As at that date the crane was located at the respondent’s premises at Darra, Queensland. The respondents required the crane to be used in Sydney and engaged the appellant to transport the crane from Darra to Sydney.

3 On 6 July 2001, Mr Baird, an employee of the appellant, drove a prime mover and low loader to the respondent’s premises at Darra. He then prepared the low loader to receive the crane. An employee of the respondents drove the crane onto the low loader to a position indicated by Mr Baird. That employee then lowered the suspension of the crane, may have locked it in place for safety, and lowered the outriggers. He then left and locked the cabin of the crane and gave the key to Mr Baird. Mr Baird secured the crane to the body of the low loader using chains. He inspected the chains before doing so and satisfied himself that they were in good condition. His Honour found that the loading and securing of the crane were performed in accordance with normal industry practice.

4 Mr Baird left Brisbane on 6 July and on that day travelled as far as the Queensland/New South Wales border, where he rested overnight. The next day he set off and drove south as far as Wallabadah. Prior to setting out he checked the rig and its load to satisfy himself that everything was in order. He stopped for a rest, as he was required to do, and then set off again having checked the rig and its load.

5 South of Wallabadah and after Mr Baird had been driving for about half an hour following his rest break, he encountered going south a right hand bend followed at a distance of approximately 300 metres by a left hand bend. He said that he went through the right hand bend at about 80 kilometres per hour and had slowed to about 70 kilometres per hour by the time he reached the left hand bend. However, as the rig entered the left hand bend, Mr Baird felt it lean to the right. He looked into his left hand side vision mirror and saw that the rear left hand wheels of the low loader were leaving the road surface. He then looked into the right hand side mirror and saw the crane lifting off the low loader. The crane then fell off the loader and hit the road surface. It was significantly damaged to the point that it was, in effect, a write off.

6 On 11 July 2002 the respondents instituted proceedings in the Supreme Court claiming damages. A further amended statement of claim was filed on 3 May 2004. It alleged several causes of action, namely, negligence of the driver, Mr Baird; breach of an implied term of the contract of carriage; and breach of the appellant’s duty as bailee of the crane to deliver it in an undamaged condition.

7 The primary judge found in favour of the appellant with respect to the causes of action in negligence and breach of contract, and there is no challenge to those findings by the respondents. However, he found for the respondents on its case in bailment and, as I have said, awarded damages, including s 94 interest, of $1,341,710. It is against the primary judge’s decision on liability only that the appellant appeals to this Court.

8 The relevant principles are not in dispute. The primary judge recited them in [22] to [28] of his judgment, which I gratefully adopt. Relevantly, the burden lies on the bailee, in this case the appellant, to affirmatively prove on the balance of probabilities that it exercised due care, skill and diligence for the safety of the bailed goods. If it fails to deliver them safely, that is evidence of a failure to perform its duty to exercise due care in relation to them. A bailee can rebut this inference by showing that their loss or damage was not the result of any default on its part.

9 The primary judge recognised in [30] that where the accident is not inevitable but could be ascribed to a number of likely causes that were neither purely speculative nor highly improbable, although the appellant is not required to prove the cause of the accident, it was required to consider the likely or possible causes and negative any fault on its part with respect to them as a whole.

10 In the present case there were a number of possible causes identified by the primary judge. They included negligently securing the load, negligent driving, defective equipment, being the rig or the chains, or some defect in the crane. His Honour excluded the first two of these, namely, negligently securing the load, by which I understand him to refer to the securing the load at the Brisbane depot in Darra and the checking of the load before resuming the journey after a rest stop, and the negligent driving by Mr Baird of the vehicle at the time of the accident.

11 As to the two other causes which his Honour had identified, he said this (at [32]):

“But there is no evidence that the prime mover or low loader were in good condition or that they had been regularly serviced and properly maintained. There is no evidence of any system of maintenance or inspection. There is no evidence that the prime mover and low loader were inspected after the accident and that there was nothing to indicate that any mechanical defect had caused or contributed to the accident.”

12 It will be noted that in the paragraph to which I have referred his Honour has expressed the view that there was no evidence in relation to three matters. No challenge is made by the appellant in relation to his Honour’s finding of no evidence in relation to the first two. However, a challenge is made to his Honour’s finding that there was no evidence that the prime mover and low loader were inspected after the accident. I shall return to that in due course.

13 His Honour then continued ([33]):

"Thus, accepting that Jacap as a bailee for reward does not have to show how the loss actually occurred, the evidence in my view does not exclude a likely or possible cause consistent with negligence or default on its part. In other words, by failing to call evidence dealing with what in ordinary human experience would be regarded as a possible if not likely cause of such an accident (it being human experience that such accidents rarely happen without some cause, and other obvious causes having been excluded, I do not think that Jacap has discharged the burden cast upon it. I do not think that mechanical defect in the rig can be said to be so highly improbable or purely speculative that Jacap bore no onus in respect of it. In particular, where proof of the mechanical condition of the rig was clearly and solely within Jacap's power, I think that its failure to lead evidence is indicative of a failure to meet the burden that, as bailee for reward, is cast upon it."

14 His Honour also referred to a suggestion that the accident may have occurred through some movement of the crane on the low loader due, for instance, to its jib becoming loose or its suspension collapsing. But as he observed in [34], there was no evidence to make good that suggestion and, therefore, no evidence that the accident occurred without any negligence or default on the appellant’s part. His Honour therefore concluded that the appellant had not discharged the onus upon it as a consequence whereof there was a breach of the bailment upon which the respondents were entitled to succeed.

15 The appellant propounds four grounds of appeal. In essence it is alleged that the primary judge erred in finding that there was no evidence that the accident was not caused by mechanical failure in either the prime mover or low loader, because that evidence was to be found in the report and oral evidence of the Roads and Traffic Authority inspector which was tendered by the respondents. Further, the grounds of appeal include an allegation that his Honour failed to have regard to the evidence that the accident was caused by the chains that secured the crane to the low loader, but in oral submissions that ground was abandoned. Accordingly, it is no longer suggested that the cause of the accident was due to the breaking of the chains securing the crane to the low loader. There is no doubt that the chains broke but it was accepted that that was due to an anterior, unidentified cause.

16 The evidentiary basis called in aid of the assertions referred to is as follows. Firstly, reliance is placed upon a report of Mr Gerald Anthony Frogley, who was employed by the Roads and Traffic Authority as an inspector, vehicle regulation, and who attended the scene of the accident on 7 July 2001. Mr Frogley’s report, which was tendered by the respondents and admitted without objection, is dated 18 July 2001. In it he provides details of the prime mover, the dolly and the low loader, which as a whole constituted the rig utilised for the purpose of the carriage. He recorded that the prime mover appeared to have been first registered in March 1999 and had been inspected in January 2001. The dolly appeared to have been first registered in July 1991 and inspected in December 2000. The low loader appeared to have been first registered in December 1995 and also inspected in January 2001.

17 In his summary of incident he says this:

“A partial mechanical inspection of the PMV, dolly and low loader were conducted. No mechanical faults found associated with incident.”

18 Mr Frogley was called to give evidence and was not cross-examined. The following exchanges took place which are relied upon by the appellant.

“Q. Did you observe any obvious mechanical faults with the low loader?

A. No obvious mechanic faults with the low loader.

Q. And you found nothing at the scene, nothing obvious at the scene to account for the accident, is that right?

A. No.”

19 Apart from Mr Baird, the driver of the prime mover and one other witness not presently relevant, the appellant called no evidence as to how the accident occurred or any evidence as to whether the components of the rig had been regularly serviced, properly maintained or were the subject of any system of maintenance or inspection. It is clear therefore that his Honour’s finding of no evidence in relation to those matters to which I have referred in [11] above was clearly correct. However, it is submitted that his Honour’s finding that there was no evidence that the prime mover and low loader were inspected after the accident cannot be sustained as a consequence of the fact that Mr Frogley carried out what he referred to in his report as a partial inspection of the prime mover, dolly and low loader and observed no obvious mechanical faults as a consequence of so doing.

20 I am prepared to accept for the purposes of the argument that, strictly speaking, his Honour was in error in making a finding of no evidence in relation to the question of post-accident inspection. But even if there be such an error, the question still to be determined by this Court, as there is no question of credibility of witnesses involved, is whether the appellant has discharged the onus that it accepts clearly lay upon it. In my opinion it has not. The evidence of Mr Frogley does not in my opinion assist the appellant. In the first place, his inspection of the rig to determine whether there was any mechanical defect which may have caused or contributed to the accident was, in his own words, only partial. Secondly, he was apparently only looking for obvious mechanical faults, this level of inspection no doubt being consistent with the fact that it was partial only.

21 The appellant submitted that it was sufficient if it merely established that there was some evidence of an inspection and some evidence of no mechanical defect. However, the difficulty with this submission is that that evidence does not appear to have been relied upon in submissions during the course of address, which is probably the explanation as to why it received no attention in his Honour’s judgment.

22 The appellant further seeks to rely on the recording in Mr Frogley’s report of the inspections of the prime mover and low loader in January 2001 and of the dolly in December 2000. However, that material does not provide any details as to what was involved in those inspections or their purpose. The mere fact that the document records an inspection in my opinion does not in any way assist the appellant in discharging its onus.

23 In my opinion the evidence of the inspection by Mr Frogley after the accident falls far short of what was required for the appellant to discharge the onus that lay upon it. If it could not pinpoint the exact cause of the accident, the appellant was required to establish that all reasonably possible or likely causes taken overall were not as a matter of probability due to any failure by it to exercise due care, skill and diligence in keeping the crane safe. However, it simply failed by a significant degree to discharge that onus. In my view no relevant error on the part of the primary judge has been demonstrated in terms of his Honour’s ultimate conclusion that the appellant had not discharged the relevant onus. I would therefore dismiss the appeal with costs.

24 GILES JA: I agree.

25 HODGSON JA: I agree with Tobias JA. I would add that in one respect the judgment of the primary judge may have made an error which was favourable to the appellant.

26 The primary judge considered whether the respondent had proved that the accident was caused by negligent loading or negligent driving by the appellant’s employee, and found that these things were not proved. Then, when considering whether the appellant had discharged its onus as bailee of proving that the damage occurred without its fault, he said:

"In the present case, the accident may have happened for a number of reasons. They include: negligently securing the load, negligent driving; defective equipment (the rig or the chains); and some defect in the crane."

He went on to say that in his judgment the first two of those possibilities had been excluded.

27 In my opinion, a finding that the respondent had not proved negligent loading or negligent driving did not mean that these possibilities should be disregarded altogether in considering whether the bailee had discharged its onus of proof. This was not a case where the bailee proved the cause of the loss, and sought to prove that this cause did not involve fault. Rather, it set out to prove that, whatever the cause was there was no fault. In such cases in my opinion it is necessary to consider all possible causes and not leave out of account altogether possible causes involving negligence just because negligence in that respect is not proved on the balance of probabilities, or even has been disproved individually on the balance of probabilities.

28 Although I do not suggest that mathematical probabilities can readily be applied in such cases, the point can be illustrated by using mathematical probabilities. Suppose there were four possible causes of loss, three of which would have involved negligence, and each of these causes was equally likely or unlikely, that is, each had 25% probability. Then, if one looks individually at each possible cause it would be excluded, because it had only 25% probability. However, the overall probability that negligence was involved would be 75%.

29 In this case I do not think the probability of negligent driving and negligent loading was shown to be zero, so in my opinion some account should have been taken of these possibilities in making the overall assessment whether the bailee had negatived negligence.

30 This is the type of problem raised in the case of The Popi M [1985] 2 Lloyds Reports 1, and discussed in my article "The Scales of Justice, Probability and Proof in Legal Fact Finding" (1969) 69 ALJ 731 at 745-50.

31 GILES JA: The order of the Court is therefore that the appeal is dismissed with costs.

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LAST UPDATED: 04/02/2005