MONARC STEEL PTY LTD v BRAMBLES HOLDINGS LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and MEAGHER JJA 29 May 1991, 26 June 1991 [1991] NSWCA 204 CLAIM THAT CRANE HIRED BY DEFENDANT TO PLAINTIFF NOT ABLE TO LIFT PROMISED WEIGHT OF 35.6 TONNES Appeal from Common Law Division — Action in contract — Claim that crane hired by defendant to plaintiff was not able to lift promised weight of 35.6 tonnes — Crane failed in lifting less than 35.6 tonnes — Trial judge held failure due to adhesions to other material of material being lifted, not to incapacity of crane. On appeal, contended that trial judge's findings of fact were wrong — Held: findings of fact correct. No issue of principle. Mahoney JA The appellants were involved in work for the repair of a Brassert washer at the No 4 blast furnace at the steelworks at Port Kembla. The work they engaged to do involved the removal of the existing washer or parts of it. In order to carry out this work, the appellants hired from Brambles Holdings Limited, the respondent, a crane and a crane driver. It was, as it is now accepted, a term of the appellants' contract with the respondent that the crane, used in a particular way, should be able to lift 35.6 tonnes. The appellants were in the use of the crane unable to do what they wished to do in the demolition of the washer. They claimed that this was because the crane was not of the capacity which the respondent had promised. They therefore sued the respondent. Giles J held that, although the crane did not do for the appellants what they had used it for, that did not result from the fact that, as promised, the crane could lift 35.6 tonnes: his Honour held that what happened resulted from another cause. He therefore dismissed the appellants' claim. The appellants have appealed to this Court against his Honour's judgment. Before Giles J, a number of matters were in dispute between the parties. Before this Court, the matters in dispute have been significantly reduced. In view of the manner in which the appeal has been argued by Mr Sheller QC, for the appellants, and by Mr Hely QC, for the respondent, it is possible to state the issues now for decision briefly. I shall, in doing so, adapt the relevant portions of the detailed and careful judgment of the trial judge. The washer in question was a large cylindrical structure through which were passed gases produced in the operation of the blast furnace. Water forced into the cylinder during its operation washed those gases in order to remove impurities. The cylinder stood on end, and had a roughly cone shaped top. It was approximately 26 metres high and approximately 7.5 metres in diameter. A little below the top of the cylindrical part of the washer, there was a metal walkway which went round the outside of the cylinder. Just below the walkway was a ring main, that is, a pipe encircling the cylinder and carrying the water which, through smaller pipes and nozzles, was sprayed into the washer. The ring main was approximately 340 mm in diameter. 2 UNREPORTED JUDGMENTS The cylinder itself was made of steel plate. It had about twelve steel members as stiffeners on its external surface along its axis. Internally it was lined with bricks and there was mortar packed in the gap of approximately 12.5 mm between the surface of the bricks and the internal surface of the steel plate. The crane consisted, inter alia, of a tall boom over which was extended a wire. That wire was controlled by a winch. The boom could be manoeuvred in the ordinary way so as to create, as it was described, a wider radius. The boom was approximately 54.9 metres long. The arrangement made between the appellants and the respondent was that the crane, operating at an 11.6 metre radius, could raise 35.6 tonnes. On the day in question, the crane was first used to move the top cone section of the washer: that was lifted down. The appellants then proposed to use the crane in the process of removing the cylindrical portion of the washer. They proposed that the cylindrical portion would be cut into three parts by cutting horizontally through the cylinder. Accordingly, the appellants, as they claimed, made the first cut through the cylinder some distance from the top of it. The appellants' claim was that, with the use of oxy-acetylene torches and otherwise, the top portion was cleanly cut from what remained. They then sought to use the crane to lift away the portion which had been so cut. In the event, the crane failed to lift that portion of the washer as the appellants wanted it to do. Certain descriptions were given of what took place. Those descriptions were not completely congruent. His Honour summarised these accounts or descriptions as follows: "Tt is necessary to now give a more complete description of the failure of the crane. According to the operator, Mr McDonald, it was set up on its outriggers, and successfully lifted down the top cone section. The next section was attached to the slings, and the operator began to winch up the load. The boom deflected, and the operator lifted the boom to keep the hook central to the load. He felt that the crane was under strain, and asked whether the section had been fully cut free. He asked this of his dogman, who was on the ground near the crane, who asked the plaintiffs' rigger who was giving directions from on the walkway still attached to the load, and the answer came back that it was. The operator took more weight, whereupon the load 'lifted and skipped out a couple of feet'. The skipping out was due to the crane tipping, with the outriggers opposite to the load lifting free of the ground. The operator immediately rested the load back on the remaining portion of the washer. According to the operator, that is how the load remained while the walkway and other appendages were cut off and lowered with another crane, in order to reduce the weight of the load. Later in the day he attempted another lift, but the load swung into the boom because part of the walkway which had not been removed caused it to be unbalanced. On the next morning that part of the walkway was cut off, and the load was successfully brought down. According to Mr Vujic, the plaintiff's rigger, the load lifted freely some inches at the first attempt, then was lowered again. Thereafter the boom was raised and lowered on a number of occasions, without his so directing, and after about an hour the load lifted again, slewed to one side, and came to rest askew on the remaining portion of the washer. According to Mr Hernandes in his evidence in chief, when the crane first took the load it lifted and moved away from the crane, and at the same time the crane tipped towards the load. The operator let the load down and it came to rest on the remaining portion of the washer about half a metre from its original position in URJ = MONARC STEEL PTY LTD v BRAMBLES HOLDINGS LTD (Mahoney JA) 3 the direction away from the crane. The operator then raised the boom, the load lifted and the crane again tipped. The load was raised and lowered a number of times, and swung into the boom. Thereafter the walkway and other appendages totalling 3 to 4 tonnes were removed, and the next morning the load was successfully lowered. At a later stage in his evidence Mr Hernandes denied the initial movement of the load way from the crane. What is common to the accounts of the operator and Mr Hernandes, which I find to have occurred, is that the crane tipped at the time of the first lift. Assuming that it was properly set up, it could not have tipped (with the outriggers opposite to the load leaving the ground) at its then operating radius unless lifting a load of 47.5 tonnes. Even if, as was suggested during addresses, the hook was not central to the load to the extent of half a metre (being the movement of the load away from the crane which occurred on one version) the crane could not have tipped unless lifting a load well over 35.6 tonnes. On the evidence, assuming that the crane was properly set up and the load was freely suspended, even on the highest assessment of its weight the crane could not have failed in the manner in which it did." Mr Sheller QC, for the appellants, did not accept completely his Honour's account of what took place or his findings. No notice of contention in this regard was filed on behalf of the respondent. His Honour then came to consider why it was that the crane had failed to lift the first portion of the cylinder in the manner desired by the appellants. His Honour noted that the respondent had submitted that the lift failed "because the load was not freely suspended, but was attached by slag from cutting around the cylinder and from cutting the stiffeners, and by mortar bridging across the cut". Having considered the evidence, his Honour said: "The conclusion to which I have come is that the crane failed in the manner described by the operator, and that the explanation for its doing so is that the load was not entirely free from the remainder of the washer. Mr Sherson described how that could be so, and I think that the most likely occurrence is that there was 'adhesion' where the stiffeners were cut, they being the last part of the load to be cut away from the remainder of the washer. Put at a lesser level, the burden of proof being on the plaintiffs I do not think that the plaintiffs have established that the crane was not capable of lifting 35.6 tonnes at a radius of 11.6 metres, or that the crane was not operated by a competent operator'. If his Honour's conclusion was in fact correct, then the appellants had not established that the crane was not as promised and so had not established a breach of the obligation on which they sued. If the reason for the failure of the lift was not as the learned judge found, then, the appellants have submitted, the proper conclusion is that the failure resulted from the incapacity of the crane and so from the breach of that obligation. Mr Sheller QC, for the appellants, based his attack upon the correctness of the learned judge's conclusion essentially upon two matters: the significance of (as I shall describe it) the second attempted lift of the washer; and upon, as he submitted, the lack of evidence that there was any such adhesion of the portion of the cylinder as the learned judge found. Mr Sheller's submissions in relation to the second lifting derived from what happened after the crane had first failed to lift the part of the washer. The result of the first attempt was that the part of the washer had been moved somewhat. Portions of the additional structures adhering to the basic cylinder of the washer were cut away and then an attempt was made to lift the portion of the cylinder 4 UNREPORTED JUDGMENTS of the washer which had been cut. The significance of this was that the second attempt was made in circumstances where there would not have been adhesion. The second attempt failed. And, the suggestion was, this indicated that the crane's failure to lift did not result from adhesions but, as it was suggested, from its incapacity to lift the relevant load. This submission was, perhaps, pressed by Mr Sheller QC as the result of observations made from the Bench during argument. Notwithstanding the encouragement so given, I do not think that the argument should succeed. It is true, I think, that, when the second lift was attempted, there were no adhesions which would affect the weight of the portion of the washer or, more accurately, which would place any particular strain upon the operation of the crane. But, as the evidence suggested, the operation of the crane during the second lift was or may well have been affected by other factors. It is to be inferred from the evidence that the weight which a crane of this kind may lift may be affected by, for example, the way in which the load is attached to the crane, whether the central hook of the crane is positioned in the centre of the load or otherwise and other matters of that kind. In the present case, it may well have been that the reason why the second lift was not successful lay in this area: at the least, I would not be satisfied that the failure of the second lift was due to the incapacity of the crane rather than to factors of this kind. In addition, there was evidence as to what happened during the course of the second lift. The crane driver indicated that, when the second lift was attempted, the load was not lifted straight up but swung back onto the boom of the crane and damaged it. It was in that context that the second lift was unsuccessful. I therefore do not think that from what occurred in the second lift the inference should be drawn that the crane would have been inadequate to lift a properly positioned load of the relevant weight. I come therefore to consider whether, on the evidence as it is before this Court, it should be concluded that the crane was not appropriate to a lift of 35.6 tonnes in the manner promised by the respondent. The learned judge held that the load which was attempted to be lifted by the crane on the first lift was less than 35.6 tonnes. That finding was not the subject of a notice of contention by the respondent and was not the subject of contest upon the appeal. In assessing the capacity of the crane to lift, it is necessary to refer briefly to the manner in which the capacity of the crane was to be assessed and stated. I shall put the matter not in technical terms but in ordinary language as it was put during the submissions to this Court. In the statement of the capacity of the crane to lift, certain assumptions or stipulations were made. Some of these were apparent from the detailed specifications prepared by the manufacturer of the crane and introduced into evidence. In those specifications, set forth in a detailed chart, the capacity of the crane to lift was stated as, in effect, a product of the "boom length" of the crane and the "radius" of its operation. In the present case, the capacity of 35.6 tonnes was based upon a boom length of 54.9 metres and a radius of 11.6 metres. In addition, the capacity was stated "for freely suspended loads" and the evidence indicated that, as I have said, the way in which the load was suspended and the direction of the lift vis a vis the load would be relevant. It is to be inferred, in my opinion, from the evidence given by, for example, the expert engineer Mr Sherson that adhesions (that is, the fact that the load was not completely free to lift but that the lifting would involve the breaking of bonds URJ = MONARC STEEL PTY LTD v BRAMBLES HOLDINGS LTD (Mahoney JA) 5 between the load and the rest of the washer) could add significantly to the weight being lifted. In this regard, "the weight being lifted" refers more accurately to the capacity of the winch of the crane and its apparatus to lift. It was said that adhesions could "in theory" add 100 tonnes to the weight of the lift in a particular case. Evidence was given as to the circumstances in which the first lift was attempted and what happened during the attempt. There was evidence from persons who were present at the time that there were no adhesions between the portion of the washer to be lifted and the rest of the structure. A Mr Vujic, a rigger, was present at the time and was involved in the lift. A Mr Hernandes was also present at the time. The evidence of each of these was to the effect that the metal plate of the cylindrical washer had been cut through by workmen prior to the attempted lift and that there was a clean cut so as to avoid adhesions. At the least, their evidence was capable of establishing this. But Mr Vujic was held by his Honour "not a credible witness" and his Honour said that he "would not accept him in this respect if other evidence points to a different conclusion. His evidence of the movement of the crane is not consistent with any of the other evidence, including that of Mr Masters, and presents a quite unlikely picture". His Honour, having reviewed Mr Hernandes' evidence, said: "T think that Mr Hernandes' recollection of detail was in some respects distorted by his view of the merits of the plaintiffs' case, and was in error, and I think that the change in his evidence concerning the initial movement of the load away from the crane, and his evidence of tipping on later lifts, is a function of this distortion". His Honour, in dealing with these two witnesses, put aside their evidence in this regard. The significant matter for this purpose is, in my opinion, that his Honour did so not merely because of objective inconsistencies in their evidence or inconsistencies between their evidence and the objective facts: see Voulis v Kozary 51 ALJR 59 at 62, 65, 66; Uranerz (Aust) Pty Ltd v Hale 54 ALJR 378 at 381. His Honour's treatment of their evidence was, in my opinion, affected by his assessment of them as witnesses: Abalos v Australian Postal Commission 65 ALJR 11 at 16. There was, on the other hand, evidence to support the conclusion that, at the time of the first lift, the relevant part of the washer was adhering to the other part of it. The construction of the washer involved not merely the metal cylinder which was its main component: there was also inside the cylinder a layer of brickwork and there was mortar of a kind which might have remained in place joining the two parts of the washer notwithstanding that there had been a clean cut of the metal of the cylinder. In preparation for the first lift, men had been employed with long rods to remove the bricks and mortar from the inside of the cylinder. And there was, I think, a suggestion in argument that, in the course of the cutting of the metal cylinder, some adhesion may have been left between the two metal sections. Photographs were taken of the cylinder at various times during the operation. Mr Sherson, the consulting engineer, said in evidence that he could observe from the photographs that there were adhesions and he based his opinion as to the reason why the first lift was unsuccessful upon the existence of such adhesions. Mr Hely QC, in argument, suggested that there was other evidence from which the existence of adhesions could be inferred. He referred to the evidence of Mr Brandsdon in cross examination as to the existence of mortar at the "cut line" of the cylinder and to the unevenness of it. 6 UNREPORTED JUDGMENTS I come now to consider whether, because of what happened in the first lift and otherwise, it should be inferred that the crane was incapable of lifting the load as promised. Mr Sheller QC, for the appellants, put his arguments in various ways. In one at least of his arguments, he attacked the learned judge's conclusion as follows. There were, his argument suggested, some four possible inferences as to why the first lift failed: because the crane was incapable of making the lift as promised; because of operator error; because the crane was wrongly positioned; and because of adhesions. The first explanation, the incapacity of the crane, was, his argument suggested, the obvious explanation. The load to be lifted was held by the judge to be less than 35.6 tonnes: that finding was not in contest on this appeal. Therefore, if the crane did not lift the load, it should be inferred that it was because it could not. Mr Sheller added to this the, as I shall describe it, reserve capacity of the crane. The evidence was, his argument suggested, that 35.6 tonnes was the recommended capacity of the crane but the manufacturer's recommendation was made upon a conservative basis: the crane could in fact lift some 25% more than that. Therefore, the fact that the crane did not lift a weight which was found to be less than 35.6 tonnes was strong evidence of the incapacity of the crane. Incapacity was, the argument suggested, the obvious inference from what had occurred. The lift could have failed because the operator erred, in positioning the load or otherwise. But, as his Honour said, that had not been suggested and so could be put aside. Similarly, the lift could have failed because the crane was not properly positioned. When the first lift was attempted, in fact the feet of the crane lifted. This explanation was suggested by Mr Bransdon but, as his Honour said, there was no evidence called to support it. But his Honour rejected this explanation and it was not, on appeal, suggested to be the cause of the failure of the lift. That explanation was therefore put aside. That left the fourth explanation, that based upon adhesions. As I have said, the learned judge accepted that explanation. He concluded that, as Mr Sherson had postulated, there were adhesions when the load was lifted. He said: "\.. there was 'adhesion' where the stiffeners were cut, they being the last part of the load to be cut away from the remainder of the washer". I am not satisfied that the learned judge's conclusion was wrong: on balance, I think it is probable that that was the explanation of what happened. The crane in question was, according to the specifications provided, able to lift 35.6 tonnes in the circumstances in question. There was no reason established as to why, if the specifications were right, the crane did not lift the load: as I have said, the only other possible explanations, wrong positioning and operator error, can be put aside. No other reason was suggested. If and insofar as this is a consideration properly to be taken into account, if the appellants' case be correct, then the specifications for the crane were wrong. But, however that be, there was in my opinion evidence from which it could be concluded that there were adhesions when the first lift was attempted. Mr Sherson, in his written statement tendered in evidence, referred to adhesions as the explanation. He said: "11. In addition to the loads described in paragraphs 9 and 10 herein, the hoisting gear had to break both remaining slag from flame cutting of the shell and stiffeners together with the tensile strength remaining in the cement lining the perimeter. This would be particularly applicable as photographs show that, immediately after the initial lift, some brickwork remained within the washer URJ = MONARC STEEL PTY LTD v BRAMBLES HOLDINGS LTD (Mahoney JA) 7 above the cut line. I refer particularly to photograph 138 contained in exhibit DRS-6. Based on a 200 kilogram per metre for breaking of the slag remaining after flame cutting, an additional load of about 5 tonnes would be required. Based on tensile strength of mortar 1.55 MPa, the tensile force necessary to break a full perimeter of render would be 46 tonnes. I have taken 10% of this at, say, 5 tonnes as being a realistic figure. 12. The total of all of the loadings described in para9, paralO and parall herein suggest that a total lift of around 50 tonnes was necessary to move the top section of the washer. This was beyond the 45.7 tonnes referred to in paragraph 4 herein at which point the crane would tip". [The reference to 45.7 tonnes should, it is clear, have been to 47.5 tonnes]. "13. I consider that the sequence of events at the time of the lift was probably that the crane, in attempting to break the mortar and slag to gain the initial lift, far exceeded its rated capacity with its outriggers lifting. When the segment became free, it swung away from the crane. At that time, the load was dropped approximately 0.7 of a metre off centre and remained held on the hook while substantial quantities of additional material were removed with another crane. Considerable difficulty was still experienced in raising the load and lifting it clear of the washer.... 16. 1 consider that the load, as lifted initially, exceeded the capacity of the crane as shown on the applicable chart and, in addition to this load, the break load from the slag and cement lining raised the hoist load beyond the overturning load for the crane". The relevant photograph 138 could, I think, be interpreted by Mr Sherson, as an expert familiar with items of that kind, as providing evidence of brickwork and the like to which he referred. Mr Sheller QC, with some force, criticised Mr Sherson's conclusion. Mr Sherson had, in his statement and evidence, sought to quantify the weight of the washer and its appurtenances at the time of the first attempted lift. Mr Sheller pointed out that his Honour did not accept Mr Sherson's quantification of the various items making up the weight of the lift. And he sought to infer from this that what Mr Sherson said as to the adhesions should not be accepted as providing the explanation of the failure. The inference was, I think, that the additional "weight" or pull on the winch attributed by Mr Sherson to the adhesions would not explain what had happened, having regard to the reserve capacity of the crane as set forth in the specifications and as referred to by Mr Sherson. There is force in what Mr Sheller has said. However, if it be accepted that there were adhesions and that, as Mr Sherson said in his oral evidence, such adhesions could add substantial amounts to the "weight" or pull upon the winch, in the end the rejection of Mr Sherson's calculations in this regard does not, in my opinion, exclude the explanation which he gave of the failure of the lift and which his Honour accepted. There are undoubted difficulties in the acceptance of any explanation of the failure of the first lift in this way. As I have said, there was evidence that there had been a clean cut of the top of the cylinder: but his Honour rejected the main evidence in that regard, that of Mr Vujic and of Mr Hernandes, and that rejection should not be put aside. And I am conscious that his Honour's conclusion, that "the most likely occurrence is that there was 'adhesion' where the stiffeners were cut", is not exactly the same as that of Mr Sherson. But, in all the circumstances, I think that his Honour's conclusion was probably correct. 8 UNREPORTED JUDGMENTS In the circumstances I am not satisfied that the plaintiffs have established that the crane failed because it was not of the capacity promised. It follows that the appeal should be dismissed with costs. Priestley JA I agree with Mahoney JA. Meagher JA I agree with Mahoney JA. The appeal is dismissed with costs. 10 Counsel for the Appellant: CS SHELLER QC FP DONOHOE Counsel for the Respondent: PG HELY QC SR DONALDSON Solicitors for the Appellant: VEREKERS 15 — Solicitors for the Respondent: CORRS