Blenner’s Transport Qld Pty Ltd & Anor v Dowling [2021] QDC 249

DISTRICT COURT OF QUEENSLAND CITATION: Blenner’s Transport & Anor v Dowling [2021] QDC 249 PARTIES: BLENNER'S TRANSPORT QLD PTY LTD ACN 169 008 495 (first plaintiff) and BLENNER'S TRUCK HIRE PTY LTD ACN 155 324 735 (second plaintiff) v WILLIAM HAROLD AUSTIN DOWLING (defendant) FILE NO: 111/20 DIVISION: Civil PROCEEDING: Claim ORIGINATING COURT: Cairns DELIVERED ON: 8 October 2021 DELIVERED AT: Cairns HEARING DATE: 10 May 2021 JUDGE: Morzone QC DCJ ORDER: 1. Judgment for the first plaintiff and second plaintiff against the defendant in the sum of $545,312.25. 2. The defendant will pay interest on the $545,312.25 from 18 September 2018 until the date of judgment at the prescribed rate pursuant to s 58 of the Civil Proceedings Act 2011 (Qld). 3. Unless either party files and serves an application for a different costs order within 14 days of this judgment, I will also order that the defendant will pay the plaintiffs’ costs of the proceeding (including reserved costs) to be assessed on the standard basis. CATCHWORDS: CIVIL PROCEEDING – NEGLIGENCE – bailee – whether the defendant owe the plaintiffs a duty of care – whether the defendant breach his duty of care to the plaintiffs – the defendant’s breach of duty cause the plaintiffs’ loss and damage – whether the loss and damage foreseeable and not to -- 1 of 10 -- 2 remote – whether the first or second plaintiff contributorily negligent – what is the assessment of damages (if any). LEGISLATION: Civil Proceedings Act 2011 (Qld) s 58 Transport Operations (Road Use Management Road Rules) Regulation 2009 (Qld) s 300 Work Health and Safety Act 2011 (Qld) s 267 CASES: Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 Powercor Australia Limited v Thomas [2012] VSCA 87 SOLICITORS: MacDonnells Law for the first and second plaintiff Defendant was self-represented Introduction [1] The first and second plaintiffs, who were respectively goods carriers and truck owners, sue the defendant driver for $581,991.00 because he lost control and crashed the fruit laden truck amidst answering his mobile phone. [2] The defendant says that his judgment (in answering the call) was impaired due to cumulative fatigue, the plaintiffs’ system of progress calls, and/or the absence of an integrated handsfree device in the truck. He also argues that, but for the overweight and unbalanced load, and/or the truck’s malfunctioning lane departure warning system, he could have righted the truck without crashing. Or alternatively, he argues that such matters caused or contributed to the crash. [3] The determinative issues in the proceeding are: 1. Did the defendant owe the plaintiffs a duty of care? 2. Did the defendant breach his duty of care to the plaintiffs? 3. Did the defendant’s breach of duty cause the plaintiffs’ loss and damage? 4. Was the loss and damage foreseeable and not too remote? 5. Was the first or second plaintiff contributorily negligent? 6. What is the assessment of damages? [4] I have found that the defendant as bailee owed a duty of care to the plaintiffs and that he breached that duty by illegally using his mobile device, failing to pay due care and attention, and losing control of the truck causing it to crash. As a result, the plaintiffs suffered loss and damage to the goods and the truck, which was foreseeable and not too remote. [5] Whilst the factors relied upon by the defendant were less than ideal, I am unable to decern any breach of duty by the plaintiffs, and even if there was, they played no part in the defendant’s self-imposed reduced capacity to right the truck without crashing. I am not satisfied that those factors substantially caused or contributed to the accident and resultant loss and damage. -- 2 of 10 -- 2 [6] I have concluded that the plaintiffs are entitled to judgment for that loss and damage, interest and costs. Did the defendant owe the plaintiffs a duty of care? [7] Leslie Blennerhassett conducted a transport operation as the sole director and shareholder of the both the first and second plaintiffs. The first plaintiff traded as Blenner’s Transport to carry fruit across Australia. In that way it was the bailee of fruit for rewards. The second plaintiff owned prime mover trucks and trailers used by the first plaintiff to transport the goods. [8] The transport operation also relied upon a third company, Labour Hire QLD Pty Ltd, which contracted with the first defendant to supply labour in the form of driving services in the transport operation. The Labour Hire QLD Pty Ltd employed the defendant for this purpose. The defendant is a professional truck driver with over 30 years of experience in various applications across Australia, including Western Australian, Northern Territory, and Queensland. [9] Labour Hire QLD Pty Ltd supplied the labour of the defendant to drive the truck and perform duties at the direction of the first or second plaintiffs. Once hired, the defendant undertook an online induction in the first plaintiff’s transport operations. On 22 November 2018 he completed the Driver Induction (Top End) Policy, the General Induction Manual, and other policies and procedures. And on 18 December 2018 completed the “Apply Fatigue Management Strategies”. Relevantly here, in addition to the legislative prohibition of use of mobile telephones while driving,1 the Top End, Local and Dock Induction Manual provided for disciplinary action for mobile phone use while driving. In addition, at part 57 of that manual drivers are advised to “stop to be safe” and that “distractions have caused rollovers” and the manual further states that “mobile phones are not to be used when driving unless on voice activated/automatic answer and on hands free and only if safe to do so, talking on the hands free mobile phone is still a distraction!”. The defendant took his day- to-day directions, instructions, and supervision from one or both of the plaintiffs. Accordingly, plaintiffs directed, instructed, and supervised the defendant in the performance of his driving tasks. This included periodical telephone contact to gauge position and timely progress of the transport. [10] It is undisputed that in his capacity as a driver the defendant knew or ought reasonably to have known that should the truck leave the road at speed there was a real risk that it would result in physical damage to the truck and the fruit and the risk of damage to the truck in the event of a collision was not insignificant and it would result in the need for repairs to the truck and replacement of the fruit.2 It is further undisputed that a reasonable person in the position of the defendant would have taken precautions to avoid the collision by obeying all road rules and applicable laws when operating the truck, insure that the truck was driven in such a way to avoid any collision and remain on the road and insure that all due care and attention was taken so as to avoid a collision.3 1 Transport Operations (Road Use Management Road Rules) Regulation 2009 (Qld), s 300. 2 Statement of Claim paras 4, and Defence paras. 4. 3 Statement of Claim paras 5, and Defence paras. 5. -- 3 of 10 -- 3 [11] It seems to me that Labour Hire QLD Pty Ltd as bailee for reward and the defendant driver as a sub-bailee of the truck and the loaded fruit owed cognate duties of care to the first and second plaintiffs.4 In Hobbs -v- Petersham Transport Co Pty Ltd,5 Menzies J, explained the duty this way: “To escape liability for non-delivery the onus of proving that the non- delivery, however caused, was without fault on its part, rested upon it. A modern statement of the position is to be found in the judgment of Lord Denning MR in Morris v C W Martin & Sons Ltd, as follows (1966) 1 QB 716, at p 726: "Once a man has taken charge of goods as a bailee for reward, it is his duty to take reasonable care to keep them safe: and he cannot escape that duty be delegating it to his servant. If the goods are lost or damaged, whilst they are in his possession, he is liable unless he can show — and the burden is on him to show — that the loss or damage occurred without any neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty.” [12] Similarly, Windeyer J said:6 “The obligation of a carrier as bailee is to exercise due care, skill and diligence for the safety of chattels entrusted to him. If he fails to deliver them safely at the end of the bailment, that is evidence of a failure to perform his duty to exercise due care of them. He can rebut this by shewing that their loss or damage was not the result of any default on his part. But to escape liability he must establish that. The burden lies on him. That this is the rule of the common law has been asserted in many cases in England extending now over more than a century. I need not cite them all.” [13] It was in the course of his employment with Labour Hire QLD Pty Ltd ABN 97 166 034 859, as the hired driver, that the defendant in turn came into the possession of the plaintiffs’ goods and truck. The defendant was thereby a sub-bailee for reward of the plaintiffs’ goods and truck. Accordingly, the defendant had a duty of care as a sub- bailee. That duty was to take reasonable care to keep the truck and goods safe, and once the truck and goods are shown to have suffered damage whilst in his possession, the defendant has the burden of showing that the loss or damage occurred without his neglect, default or misconduct. [14] This is an unusual case involving separate corporate entities with common principals behind them. Whilst, ordinarily, an employer is vicariously liable for the negligent, wrongful or criminal acts of its employee, there is no bar to an impacted third party suing the employee directly. The defendant is capable of being sued by the first and second plaintiffs. [15] The defendant contends that the first and/or second plaintiffs had statutory duties pursuant to the Work Health and Safety Act 2011 (Qld). Even so, any statutory duties owed to the defendant by the plaintiffs, do not amount to a defence or otherwise affect 4 Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 at [237] to [238]. 5 Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 22 at [233] per Menzies J. 6 Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 22 at [233] at [240] per Windeyer J. -- 4 of 10 -- 4 the cause of action by the plaintiffs.7 Instead, they can be properly considered as contentious allegations of contributory negligence on the part of the first and/or second plaintiffs, which I consider later. Did the defendant breach his duty of care to the plaintiffs? [16] On 17 September 2019, the day before the crash, he had returned from a Townsville – Bermaraby round trip. He stopped work at about 10 am and had a 24 hour rest break. [17] On the following day, the defendant was scheduled to undertake a short trip from Townsville to Tully, which is renowned for banana cultivation in northern Queensland. But his departure was delayed due to a breakdown of the connecting truck. There was a further complication with tyre wear on the truck, which endured during the journey from the time he left Townsville at about 1:30 pm but the tyres were attended to after his arrival at Tully at about 3:45 pm. [18] Upon his arrival in Tully, the defendant became further stressed and frustrated by learning that another driver, Shane, may have undertaken the journey and loading at Tully. He made complaint to the operator and perceived the disinterest of the local manager. The loading was delayed at the dock. The fruit was eventually loaded by pallet in Tully and I accept the accuracy of the loading manifest for T298, which recorded the load comprising 2,056 cartons (I deal with the defendant’s assertions of overloading and load distribution later). After that, the defendant encountered further frustrating delay due to a malfunctioning fridge trailer. He was close to four hours behind schedule by the time he was cleared for departure from Tully. These things continued to play on his mind during his ongoing journey in the truck. He updated the changeover driver by text at 7.41 pm while stationary in Innisfail. He last stopped at Ingham to check the tyres and fridge temperature. He then set off destined for Townsville. [19] The laden truck was in a B-double configuration comprising a single prime mover towing two consecutive trailers. It was fitted with closed circuit cameras, and was technologically equipped to remotely monitor speed, location, rest stops and other fatigue related data, and communication. [20] At about 9.59 pm on 18 September 2019, as the defendant was driving the truck on the Bruce highway south of Ingham, when he received an incoming mobile phone call. What followed has been captured any on the truck’s in-cabin cameras showing the defendant in the cab and the road ahead, as well as other displayed data, including the truck speed at the time. Having failed to connect to the incoming call with his Bluetooth earpiece, the footage shows the defendant looking down and up to the road for about second, and down to his mobile phone for one to two sections whilst held and swiped the phone with one hand, with his other hand on the steering wheel. As he did this he allowed the truck to veer to the left of the road surface. The roadway falls away steeply. The CCTV footage records the speed at about 97 km/hr. The defendant tried, but was unable, to right the truck back to the road pavement. The CCTV vision is lost as the truck continued off the side of the road, and rolled before 7 Work Health and Safety Act 2011 (Qld), s 267. -- 5 of 10 -- 5 coming to rest. The truck was severely damaged, the load of fresh fruit was destroyed,8 and the defendant suffered very serious injuries. [21] The defendant was the sole occupant and driver of the truck. His proper control of the truck was severely compromised by trying to answer the mobile phone call over less than two seconds (not longer as the defendant submitted based on the duration of the 45 second phone call). [22] The road surface was elevated with a very steep verge falling away from the shoulder on both sides. The truck was on an unrecoverable collision course and it was impossible to right by the time the defendant looked up again. [23] By virtue of s 300 of the Transport Operations (Road Use Management Road Rules) Regulation 2009 (Qld), the defendant’s use of his mobile phone was illegal. He was convicted of the offence. For reasons which I explain below, I do not accept that any factor, other than the defendant’s neglect, default or misconduct by using the mobile phone, caused or contributed to the crash. He failed to maintain due care and attention to competently manoeuvre and control the truck, and thereby breached his duty to take reasonable care to keep the truck and goods safe as bailee. Did the defendant’s breach of duty cause the plaintiffs’ loss and damage? [24] It follows that the collision and the resultant loss or damage to the truck and the goods were caused by the defendant’s neglect, default or misconduct. [25] I accept the plaintiffs’ evidence as to the cost of the loss of the value of the goods as reimbursed to the owners is $36,679.00 calculated as follows: (a) Payment to We-Own-A $21,618.00 (b) Payment to Florito $14,085.00 (c) Payment to LG, AW, & H&D Wahday $976.00 Total $36,679.00 [26] The plaintiffs have also carried out repairs to the truck. In addition to outsourcing repair work, the plaintiffs are also entitled to claim for quantifiable internal repair work.9 I accept the vouched costs of all repairs to the truck amounting to $508,633.25 calculated as follows: (a) Internal Labour $4,785.00 (b) Truck Bake Recovery $5,354.25 (c) Initial Disassemble $770.00 (d) Transmission & Engine repairs $27,063.66 (e) Truck Bake Cab & Chassis Repairs $74,049.35 8 Statement of Claim, para 7, and Defence para 7(b). 9 Cf. Powercor Australia Limited v Thomas [2012] VSCA 87 at [73]. -- 6 of 10 -- 6 (f) Internal Repair/Assembly Completion $38,202.95 (g) Tyres $2,640.00 (h) B&H Parts Invoice 1761412 $43,881.39 (i) B&H Parts Invoice 1869824 $56,613.43 (j) B&H Parts Invoice 1873196 $2,012.23 (k) B&H Parts Invoice 1873548 $739.73 (l) B&H Parts Invoice 1882939 $298.27 (m) B&H Parts Invoice 1888505 $307.32 (n) L67A FTE Invoice 11305 $90,095.00 (o) L67B FTE Invoice 11306 $99,764.50 (p) L67A Krueger Chassis repair Invoice 16061 $18,078.17 (q) 2 x Second Hand Thermo King Fridge units $43,978.00 Total $508,633.25 Was the loss and damage foreseeable and not too remote? [27] It seems to me that the loss and damage caused by the crash is reasonable, foreseeable and not too remote. Was the first or second plaintiff contributorily negligent? [28] The defendant contends that the first and/or second plaintiffs had statutory duties pursuant to the Work Health and Safety Act 2011 (Qld) to: (a) Provide the defendant with hands free telephone technology; (b) Fit the truck with hands free telephone technology; (c) Provide the defendant with training in respect of the appropriate action to be taken if he received a telephone call while driving; (d) Not put the defendant under pressure to forsake rest breaks in order to meet driving schedules; (e) Fit the truck with lane departure warning and prevention technology; (f) Ensure that the truck was not overloaded before its departure from Tully. -- 7 of 10 -- 7 [29] I do not accept that the plaintiffs breached any duties to the defendant, and, in any event, I do not accept that any of these factors caused or contributed to the crash for reasons which follow. [30] The defendant argues that the first or second plaintiff failed to provide the defendant with hands free telephone technology, or otherwise fit the truck with hands free telephone technology. On the contrary, Mr Blennerhassett disposes to both providing a MT Data communication system which enabled drivers to place hands fee calls to certain phone numbers within the first plaintiff’s transport business. However, the defendant says that he was not taught how to use the MT Data system, nor was he making or receiving the call via the MT Data system. The plaintiffs did not otherwise provide drivers with Bluetooth headsets or any other devices to pick up incoming calls. This is consistent with the induction training provided to defendant disabusing the use of mobile telephone while driving. In his evidence he acknowledged having a “solid history of always taking an earpiece and I understand my safety obligations regarding driver duration and unsafe use of mobile phones.” I accept that the defendant initially tried to connect with his own Bluetooth earpiece but he was unsuccessful. Instead of desisting at that stage, he persisted with the dangerous act of using his handheld device. He explained his poor judgment saying “the I reason I swiped my phone was because the earpiece was malfunctioned and it was a – it was just one of those things that, when it malfunctioned, picked it up, swiped it, and then it was too late, all over. I’d used my earpiece the night of the incident on other calls. I recall swiping if my Bluetooth earpiece could’ve activate – and experienced poor judgment in the second decision – split second decision.” It seems to me that the defendant acted alone and unlawfully by using his mobile phone as he did. [31] The defendant’s attributes his poor judgment, of answering the mobile phone, to his accumulated fatigue. The defendant argues that the plaintiffs somehow imposed pressure to forsake rest breaks in order to meet driving schedules and induced cumulative fatigue. This is not supported by the first plaintiff’s policy guidelines or his purported compliance with them. The first plaintiff’s “Top End, Local & Dock Induction Manual” at Parts 8 and 9 warns drivers of disciplinary action, including termination, if found driving while impaired or fatigued. Part 4 of the manual explains the use of the “Basic Fatigue Management Plan” and Part 25 of the manual requires compliance with the driver’s fatigue scheme and to observe appropriate rest breaks. Further, Part 47 of the manual mandates the completion of the driver’s inspection checklist at the commencement of each journey. In that checklist the driver declares that “I am fit and legal for work today in accordance with my obligation under the heavy vehicle (fatigue management) national regulation and the fatigue scheme I am operating under.” and declares fitness for work and absence of any physical or mental condition that affects the ability to drive. Accordingly, the defendant’s diaries, pre-start checklists and MT Data fatigue management system for the 14 days up to and include the 18 September 2019 are all compliant. [32] The defendant also argues that the plaintiff’s failed to fit the truck with operable lane departure warning and prevention technology. The plaintiffs accept that none of its fleet are fitted with such warning systems, and denies any obligation to do so. While desirable, in the absence of an established industry standard, I am not persuaded that either the first or second plaintiff was duty bound to install departure warning and prevention technology in the truck. In any event, on my reckoning of the reaction time of less than 2 seconds, disclosed by the CCTV footage, I do not accept that a -- 8 of 10 -- 8 lane departure warning would have made any difference. I do not accept the defendant’s estimate that he had a longer period of time based on the timing of the incoming call. He submitted that: “I’m just saying the 45-second duration was from when I picked it up, swiped it and finished crashing the truck, because I think, in that video, you can hear the crash. So when Mr Meredith said that I could’ve been back further before that line departure warning was going, it only took possibly – that 45 seconds would’ve been 20 seconds by the time I come off the road until I stopped, so – or 30, but, for 10 seconds of it, if I was warned with the lane departure warning, it wouldn’t have happened. If it was only a duration of 45 seconds – because I’ve got a photo screenshot of that call at the particular time, 10.59 – and that’s all it says. And the duration of the call was for 45 seconds.” [33] This submission presupposes that the truck veered from the lane earlier before the defendant’s attempt to answer the call. There is no evidence of that, nor could I infer that the defendant would have desisted from continuing the dangerous act as he did. [34] Finally, the defendant argues that the first and/or second defendant failed to ensure that the truck was not overloaded or imbalanced before its departure from Tully. The defendant cites the Heavy Vehicle National Law to assert that “a B-double’s allowable weight is 6.5 tonne on the front axle (sic)17 tonne on the drive of the prime mover (sic) 22.5 on the tri acle.” He deposes to being “certain that there was overloading” of the ‘drive’ of the lead trailer with 792 cartons on 12 pallets, compared with the underloading of only 20 pallets on the rear trailer. He asserts that “once the truck is loaded with a full fuel tank, it is getting to 18 tonne on the ‘drive’”. However, the incident occurred before the defendant had planned to weigh-in at Rollingstone. At best the defendant relied on his “past experience with completing handwritten annotations of the weight, and my general knowledge and feel for trucks, I recall that the weight of the truck was in excess of the maximum, weight on the drive over the lead trailer.” It seems to me that the defendant is engaging in speculation and conjecture. [35] I accept the evidence of Leslie Blennerhassett that the weight limit for the truck trailers was 38 tonnes, which equated to 2100 carton, or 792 cartons in the lead trailer and 1308 in the rear trailer. I accept the accuracy of the loading manifest for T298, which recorded the load as comprising 2,056 cartons. Neither trailer exceeded the regulated weight limit. Further, in the absence of any credible evidence of the indicia consistent with load imbalance or distribution, I do not accept that the truck was compromised by the load. [36] For these reasons, I find that the plaintiffs did not breach any duties to the defendant, and, in any event, I find that none of the matters asserted by the defendant caused or contributed to the crash, and loss and damage. What is the assessment of damages? [37] I will allow the cost of the loss of the value of the goods as reimbursed to the owners is $36,679.00 together the vouched costs of repairs to the truck amounting to $508,633.25. -- 9 of 10 -- 9 [38] Therefore, I assess the plaintiffs’ loss and damage as $545,312.25. [39] I also allow interest on the judgment sum from 18 September 2018 until the date of judgment at the prescribed rate pursuant to s 58 of the Civil Proceedings Act 2011 (Qld). [40] Costs ought follow the event unless the interests of justice are demonstrated otherwise. Conclusion [41] For these reasons, I will give judgement to the first and second plaintiffs against the defendant and make the following orders: 1. Judgment for the first plaintiff and second plaintiff against the defendant in the sum of $545,312.25. 2. The defendant will pay interest on the $545,312.25 from 18 September 2018 until the date of judgment at the prescribed rate pursuant to s 58 of the Civil Proceedings Act 2011 (Qld). 3. Unless either party files and serves an application for a different costs order within 14 days of this judgment, I will also order that the defendant will pay the plaintiffs’ costs of the proceeding (including reserved costs) to be assessed on the standard basis. Judge DP Morzone QC -- 10 of 10 --