Thomson v Mybner Pty Limited [2000] NSWSC 766

New South Wales Supreme Court

CITATION : Thomson v Mybner Pty Limited [2000] NSWSC 766 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20202/99 HEARING DATE(S) : 17 July 2000 - 18 July 2000 JUDGMENT DATE : 20 July 2000

PARTIES : Ian Ross Thomson v Mybner Pty Limited JUDGMENT OF : Michael Grove J at 1

COUNSEL : C. Hickey (Plaintiff) P. O'Connor (Defendant) SOLICITORS : Peter Long & Patricia Howland (Plaintiff) Hunt & Hunt (Defendant) CATCHWORDS : Negligence - Master/Servant - Vicarious Liability - Damages Assessed Kempsey District Hospital v Thackham 1995 36 NSWLR 492 CASES CITED : Nair v The Health Administration Corporation 1995 ATR 81-312 AWA v Keogh 3 MVR 243 McLean's Roylen Cruises v McEwan 1984 58 ALJR 423 DECISION : Judgment for Plaintiff

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

TAMWORTH: Thursday 20 July 2000

20202/99 - IAN ROSS THOMSON v MYBNER PTY LIMITED

JUDGMENT

1 HIS HONOUR: In this action the plaintiff seeks damages from his relevant employer in respect of injuries which he claims to have sustained on 14 July 1998. The plaintiff was employed by the defendant as a heavy vehicle driver. On the date in question, and for sometime prior to that, he had been required to transport feed grain by means of what is described as a B-Double rig. This consists of two trailers; in this instance the one closer to the cabin carrying a load of approximately thirteen tonne and the one further from the cabin carrying some twenty six tonne. 2 There is evidence that the ordinary routine was for the plaintiff to deliver his load from the Tamworth area to various chicken farms located to the south; generally in and about the outer suburbs of Sydney. On occasions his employer arranged for the acquisition of a back-load on the return trip to the Tamworth area. 3 It is significant to note that the plaintiff was employed purely as a driver. This is relatively unusual but not unknown in the trucking industry. 4 The limitations, therefore, upon his employment included the circumstance that he was not involved in the loading of the truck, nor was he involved in the tying down of covers upon the load, nor was he involved in the discharge of the load at the delivery point. 5 The plaintiff's tasks, so the evidence goes, did not extend beyond simply picking up the preloaded vehicle and making the delivery that I have indicated. He also performed some superficial checks to which I will later refer. 6 The system was that when other employees of the defendant had the load prepared and ready to roll as it were, the plaintiff would receive a telephone call, he would attend at the depot, and deliver the load. 7 On 14 July it is the plaintiff's recollection that he had made a delivery and returned to the depot at about 3.30 in the afternoon. He thinks he did bring back a back-load, although this would not seem to be of any significance to the matters in contest. 8 He did notice that there were some minor tears in the tarpaulins which are used to cover the load. It was no part of his function to attend to the repair of these, and he reported this to the maintenance staff, and apparently remained at the depot long enough to see them remove the tarpaulins for the purpose of attending to the minor repair. 9 At about 7 pm that evening he received a call telling him that there was another load to be taken, and he reported to the depot at about 20 to 8 in the evening. 10 I might mention in passing that records show that at sometime during that day the plaintiff called upon an osteopath, Mr Mullens. His surgery records, which are now Exhibit 2, indicate this visit, and I shall make reference to this later in this judgment. 11 When the plaintiff returned to the depot he found his truck ready to be taken out. He checked the tyres and visually made sure that locking pins were in place in the tailgates. He checked the turntables, visually saw that the tarpaulin was down, and checked that the ropes were tight. 12 This would seem to be the full extent of any requirement of the incidents of his employment other than the actual delivery of the load. 13 He set off on the southbound journey. According to his evidence he noticed something about the load at approximately the village of Rutherford, and some five kilometres or thereabouts further south he came to the large roundabout near the City of Maitland, which is particularly well lit and wide, thus giving the driver an opportunity to make a visual inspection to the rear of his load using the vision mirrors, even though it was by then well into the night. 14 He had observed that there was a flapping of the tarpaulin covering the rear load of the B-Double rig. He decided to stop to check and see if he could attend to the matter. This was consistent with the description given of him by fellow workmen that he was an extremely conscientious and careful driver. When he went to look at the load he noticed that the last of three ropes securing the particular tarpaulin had not been secured around the appropriate hook. I should pause to make some observations about the tarpaulin system. 15 The particular tarpaulins on these loads were attached by fixed ropes to the nearside, and these were tied in what has been described as a truckies hitch. On the offside there were other ropes, but to these were attached rubber sewer rings, which were flexible, and thus in order to uncover the load it was possible on the offside simply to use the elasticity of the rings to detach that side and roll back the tarpaulin. Indeed it was the practice to use this system to open the tarpaulin halfway in order to put the load into the trailer from the hopper. I repeat, however, that the plaintiff himself was not involved in this part of the operation. 16 It is also to be observed that at the delivery end the trailers, which had a tip facility, were not used for that function, but the feed grain was taken out by means of a blower. 17 Another matter to which I might conveniently refer during this pause is a suggestion made by the plaintiff to his employer about using a different tarpaulin attachment system which for convenience I will call a roll-top. 18 The plaintiff had raised this matter with one of the principals of his employer, Mr John Carey, but what he told him was that the tarpaulins were not safe because the rubber bands - that is to say the sewer rings - which they were using, were recoiling. He told him that some of them when they recoiled flew back in the face of the operator, and you could not get consistent tension all the way through. 19 The suggested alternative involved the fitting of the trailer with a handle, something like a jack handle, so that the tarpaulin could be simply rolled on and off. Whilst that is no doubt an attractive alternative, it has to be pointed out that the complaint made had nothing whatever to do with the incident that later befell the plaintiff and, as I have indicated, his concern was about the recoil of the elasticity in the rings. 20 The roll-top, so far as I can judge, was one of many alternatives that might have been used on this particular truck. I return, however, to what occurred on 14 July. 21 The last three securing ropes on the nearside of the trailer consisted of vertical ropes, one attached on that side nearest the rear and the one, third from the rear. The centre attachment of the three was a rope that moved diagonally so that it attached and made the corner of the tarpaulin snug on the angle. 22 The plaintiff observed that these three ropes had not been tied behind the hook, but there was in position a truckies hitch, and to his observation it looked intact. He said that he was familiar with ropes which were tied in a truckies hitch, but it had never been his experience that such hitch had ever given way before. I am able to infer the probable reason for this experience, and I shall give reasons for my conclusion in a few moments. 23 The plaintiff undid the first misapplied rope (in the sense that it had not been passed around the hook) and he held it tightly, taking the tension in his left-hand whilst he threaded it back through the hook and through the cloves of the truckies hitch. He encountered no difficulty in doing this. 24 As I understand it, this first rope to which he attended was the diagonal rope that I have earlier described. 25 He then set about performing the identical task with a second rope, but as he was holding it, the rope and its cloves gave way, and as a result he fell suddenly forward and noticed severe pain in his lower back. Undoubtedly it was necessary for him to stand in a relatively awkward position, and importantly he was exerting pressure upon the rope in order to maintain and give it tension. Hence he was vulnerable to the injury to his lower back. 26 In the course of evidence quite a lot was said about the truckies hitch. It was said to be something that was familiarly used, and commonly used throughout the industry. Indeed this proposition was vigorously advanced on behalf of the defendant. And I accept that it is probably the case that the truckies hitch is commonly used throughout industry. But the truckies hitch consists of a single piece of rope, but it is not accurate, as was put by counsel for the defendant, to say that simple pressure upon it will cause it to string out into a single long strand. This is because if the hitch is properly tied it not only has cloves but it has, what any boy scout would be able to tell you, a locking hitch, and it is plain that these ropes, or at least the rope that gave way, had not been tied with a locking hitch. 27 I do not need to rely upon the general knowledge of boy scouts for this conclusion, as indeed in passing, as it were, one of the experts, a Dr Coyle, who spent a long time discussing ergonomic matters and rubber rings and the like, said this: "Because of the way in which the ropes had been initially secured, it was impossible for him to ascertain that they had been in fact tied incorrectly, most probably without a locking hitch on the clove hitch without undoing all of the ropes".