PARTIES:		BARTON, Kym William DAVIDSON, Allison

V

McHOURS, James
J &   M TRUCKING PTY LTD

TITLE OF COURT:		SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

JURISDICTION:	CIVIL

FILE NOS:	SC No 87/91

DELIVERED:	28 May 1993, Darwin

HEARING DATES:	22 February 1993 to
26 February 1993,
29 March 1993 to
2 April 1993

JUDGMENT OF:	Angel J

CATCHWORDS:
Bailment - Bailment for reward - Duties and liabilities of bailee - Negligence - Duty to take reasonable care for the safety of the goods - Not under an absolute duty to deliver - Duty not broken if disabled from delivery through destruction or loss which reasonable care and skill could not avoid -
John F Goulding Proprietary Ltd v The Victorian Railways Commissioners (1932) 48 CLR 157, followed.
Bailment - Bailment for reward - Duties and liabilities of bailee Negligence - Duty to take reasonable care for the safety of the goods - Unroadworthy vehicle - Proof of the possibility that the default caused the loss is not sufficient -
St George Club Ltd v Hines (1961) 35 ALJR 106, followed Bailment - Bailment for reward - Duties and liabilities of

bailee - Negligence - Duty to take reasonable care for the safety of the goods - Unroadworthy vehicle - Defendant to exclude lack of reasonable care as a cause
- Defendant must prove the loss was without fault on its part -
Hobbs v Petersham Transport Co Pty Ltd (1971) 45 ALJR 356,
followed.
Bailment - Remedies - Damages for loss and damage to goods.

Bailment - Remedies - Damages - Remoteness of consequential loss of future contracts.

Carriers - Carriage of goods - Breach of contract of carriage - Onus on plaintiff to prove.

Negligence - Proof of negligence - Res ipsa loquitur - reasonable explanation by defendant - Reasonable person's actions in the same circumstances - Foreseeability is not a reflection of hindsight -
CBS Songs Ltd v Amstrad Consumer Electronics PLC [1988] AC
1013, applied.

REPRESENTATION:
counsel:
Plaintiffs:	Alistair Wyvill Defendants:	George Watkins

Solicitors:
Plaintiffs:	Cridlands Defendants:	Buckley & Stone

Judgment category classification:	B Court Computer Code:
Judgment ID Number: ang93004 Number of pages:	18

ang93004
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 87/91

BETWEEN:

KYM WILLIAM BARTON and ALLISON GAYE DAVIDSON
Plaintiffs

AND:

JAMES McHOURS
First Defendant

AND:

CORAM:	ANGEL J

J & M TRUCKING PTY LTD
Second Defendant

REASONS FOR JUDGMENT

(Delivered 28 May 1993)

on 27 November 1990 a road train consisting of a Mack Prime Mover, semi trailer and two other trailers owned by the second defendant and loaded with, inter alia, goods owned by the plaintiffs, was being driven by the first defendant in a southerly direction along a stretch of the Mainoru Road from Bullman Station towards Katherine when the front left steering tyre exploded.	At the time there was no other traffic on the road, it was daylight and the dirt road

surface was in good condition.	The road train was at the time reaching the bottom of a gradual slope and was travelling in overdrive gear at about its maximum governed speed of eighty-five kilometres per hour.	When the tyre exploded it did so with a loud noise and with such force that it destroyed, inter alia, the front headlight on the left fender of the prime mover and damaged the bonnet catches, lifting the bonnet so as to temporarily block the forward view of the driver.	The vehicle skewed off the roadway to the left into a graded drain that ran parallel with the road surface.	The first defendant "fought with the steering" and turned the vehicle to the right, seeking to maintain a course parallel to the road surface.	To the left of the graded drain, running off at an angle in to the bush was a graded run-off water drain.	As the road train passed the graded run-off water drain, the rear trailers struck the side of that drain.	The leading near side edge of the rear trailer struck a tree situate some few metres past the southern edge of the graded run-off water drain.		The road train skewed back on to the gravel road surface, coming to rest with the middle trailer having turned up side down in an anti-clockwise direction and the rear trailer having turned clockwise on to its off side.

Prior to this incident there had been loaded on the middle trailer a 1975 Toyota D6000 cattle truck and crate and a 1978 Toyota Land Cruiser long wheel base bull catcher owned and used by the plaintiffs in their contract stock

mustering business, .and on the rear trailer a 1982 Toyota Land Cruiser short wheel base bull catcher with bionic arm and camp trailer loaded with various items also used by the plaintiffs in their business.

In these proceedings the plaintiffs claim damages for injury to and loss of goods and for alleged consequential losses by way of lost income from cattle mustering contracts which it was said could not be fulfilled because the plaintiffs could no longer carry on their business.	The plaintiffs sue for breach of contract of carriage, for negligence and for breach of bailment.	The plaintiffs plead res ipsa loquitur.	It was common ground that the plaintiffs bear the onus of making out their case so far as breach of contract and negligence is alleged.	It was also common ground that where facts give rise to consideration of the plea res ipsa loquitur there is a change of evidentiary burden and the defendants are obliged to explain a cause other than negligence, and that having done so, the evidentiary onus reverts to the plaintiffs.	Here there is an explanation for the accident, namely the blow out.

In their particulars of negligence, the plaintiffs allege that the first defendant drove too fast in the circumstances, failed to keep any or any proper or effective control of the prime mover, failed to stop, slow down "or in any way so as to manage or control the prime mover or to avoid" the mishap, failed to repair the right hand front

spring of the prime mover and failed to maintain the tyres on the prime mover.

Upon consideration of the evidence, I have come to the conclusion the plaintiffs have not made out their case in negligence or breach of contract.	I think the plaintiffs have failed to establish that a reasonable person would have acted any differently from the first defendant.	The first defendant was at the time a very experienced driver of road trains who was familiar with the road he was traversing.	He had done cattle carriage work for various musterers in the Bullman region that season.	The particular area of the road where the mishap occurred was at the bottom of a gentle slope and he had habitually driven at the road train's governed speed in overdrive at that point.	The plaintiffs in evidence at one time sought to establish that the first defendant had fallen asleep at the wheel, but the. police plan and the evidence of Constable Hanson clearly show that the blow out occurred whilst the road train was travelling in the middle of the road and that the blow out was the immediate cause of the vehicle leaving the roadway and travelling in to the spoon drain.

The first defendant's vision was obscured by the up­ lifted bonnet and he was apprehensive of hitting trees should he not correct the leftwards direction of travel.	In the circumstances I do not consider the first defendant can be criticised for the way he reacted to the unexpected

dilemma with which he was confronted, that is, a blown steering tyre and loss of forward vision.	The manner of driving, both before and after the blow out, it is my conclusion, was not such that any reasonable person would have done differently.	To suggest otherwise as did the male plaintiff, I think, is to apply the wisdom of hindsight.	It is not the law "that foreseeability is a reflection of hindsight and that for every mischance in an accident-prone world someone solvent must be liable in damages", CBS Songs Ltd v Amstrad Consumer Electronics PLC [1988] AC 1013 at 1059, per Lord Templeman.

The exploded tyre apart, there was no defect in the prime mover, its other tyres or otherwise which contributed to the mishap.	The exploded tyre was apparently in good condition and tap tested by the first defendant at the commencement and in the course of the trip that day.	The middle trailer had some bald tyres and a front offside spring hanger on the rear trailer was broken at a weld, but for reasons which appear I do not think these matters establish liability for breach of contract or negligence.

I conclude the plaintiffs have not made out a case in breach of contract or negligence.

The plaintiffs gave evidence of a telephone conversation with the first defendant in which, they said, the first defendant both swore and made statements amounting

to an admission of liability and of careless driving on his part.	I accept the first defendant's version of this conversation.	Prior to the mishap the plaintiffs and first defendant had been friends and such consolation as the first defendant extended to the plaintiffs on the telephone was born from his sense of decency rather than any feeling of legal responsibility or guilt.	So, too, with the subsequent discussions between the parties about reparation - they likewise give rise to no inference of negligence, but rather reflect the kindly nature of the first defendant and his sense of decency and social responsibility.

I turn to the question of bailment.	There is no plea that the defendants were common carriers.		It was common ground that the defendants in so far as they were to be regarded as bailees bore an onus to prove they had taken reasonable care for the safety of the goods:		Hobbs v Petersham Transport Co Pty Ltd (1971) 45 ALJR 356.	The question here is whether the mishap occurred without any negligent act or omission of the second defendant as a bailee for reward.	It was common ground that the second defendant was a bailee of the plaintiffs' goods being carried.	As such, the second defendant was not under an absolute duty to deliver.	Its duty to deliver would not be broken if the second defendant was disabled from delivery through destruction or loss of the goods which reasonable care and skill on its part could not avoid:		John F. Goulding Proprietary Ltd v The Victorian Railways

Commissioners (1932) 48 CLR 157 at 166.	As I have said, it was common ground that the onus of proving that the loss was without fault on the second defendant's part rested upon it. The second defendant as carrier was not an insurer.

It was faintly argued that the first defendant was a bailee, though I do not understand how.	At all material times he was acting as an agent for the second defendant. The road train was owned and operated by the second defendant which had its name prominently displayed upon it for all, including the plaintiffs, to see.

Here the front steerer tyre was in good condition.		It had been tested by the first defendant in the course of this trip.	The unexpected blow out was not itself due to any act of the defendants.	The road train, generally speaking, was suitable for its task.	I have already found it was not improperly driven.	It was not overloaded or incorrectly loaded.			The blow out occurred without prior warning.	As with the fractured axle in Hobbs' case, supra, there was no evidence here of any warning sign of an impending blow out which could have been seen upon examination.	The steering tyre which failed was a recap and had good tread.	There was evidence, which I accept, that tyres modified in that fashion are no more prone to blowing out than ordinary tyres.		There was evidence from Mr Kellett, a transport inspector with the Department of Transport and Works, that four tyres of unspecified location on the middle trailer

were worn and in an unroadworthy condition and that a right hand front spring hanger on the rear trailer dolly had been broken at the welds before the accident.	In the circumstances of this case it is not proven by the plaintiffs that such matters caused or contributed to the mishap.	However, considered either individually or in· combination, the proven unroadworthiness of these trailer tyres and the broken hanger satisfy me that the second defendant has failed to exclude lack of reasonable care for the safety of the plaintiffs' goods on its part as a cause of the mishap.	The roll over occurred after the blow out caused the road train to skew left in to the spoon drain and after the rear trailers had struck the graded water run-off drain and tree.		In the events the even momentum of the road train became so destabilised as to cause the end two trailers to roll over.	As I have said, a front off-side spring hanger on the rear trailer dolly was broken at the welds before the accident.		I infer this would have been evident upon reasonable inspection.	It ought to have been discovered and rectified.	No satisfactory evidence was led as to the effect of this on the general stability or safety of the trailer.		No expert evidence was led as to its effect upon the stability or safety of the trailer in the circumstances of this mishap.	In the course of, or as a consequence of the mishap, the other hanger on the off-side dolly spring broke, suggesting perhaps, its inability alone to cope at some stage with the stresses and strains put upon it.	The loosening of one side spring hanger of a trailer

dolly, I infer, would have some adverse effect on a trailer's normal stability and function.	Whether it was the cause or a material contributing factor to the rear and middle trailers overturning I am unable to say.	In the circumstances I am equally unable to say it was not a material contributing cause of the roll over.

The plaintiffs have proven default on the part of the second defendant in failing to properly maintain the road train.	They have proved loss.	They have not proved the second defendant's default caused the loss.	They have proved the possibility, but that is not enough:	St	George Club Ltd v Hines (1961) 35 ALJR 106 at 107.	However the
second defendant carrier as bailee has failed to prove on
the balance of probabilities that the plaintiffs' loss was without fault on its part and it follows that the plaintiffs' claim succeeds against the second defendant carrier for breach of bailment:	Hobbs, supra.	I have reached this conclusion on the balance of probabilities and contrary to Mr Kellett•s expressed opinion which was devoid of explanation, elaboration, justification or reasoning.

The defendants pleaded an accord in satisfaction of the plaintiffs' claim.	There was no satisfaction, on account, it was said by the defendants, of the plaintiffs' repudiation of the accord.	In contract parties become bound when and in the manner in which they intend to be bound: see the authorities referred to in Cook v Saroukos (1989) 97

FLR 33 at 37, 38.	On the evidence I am not satisfied the male plaintiff intended or could be reasonably taken by the first defendant to intend to contractually abandon any rights he or his fellow plaintiff had arising from the mishap during their conversations following the mishap.	No estoppel was pleaded.

The plaintiffs included in their claim consequential losses with respect to an alleged sub-contract with
Alan Davis at Ngukurr.	I am satisfied the plaintiffs could not recover that alleged loss because - putting the matter shortly - that opportunity entailed the plaintiffs supplying one bull catcher and one truck for a period during the 1990/91 wet season, and the plaintiffs had that equipment available in any event for that contract.

The plaintiffs further claimed consequential losses in respect of two further years' contract mustering at Bagetti, an outstation of Bullman.	The mishap occurred at the conclusion of the plaintiffs' 1990 season at Bagetti and they claim consequential loss of income for a further two years by reason of the damage to their equipment.	Again, putting the matter shortly, I do not think the plaintiffs can recover these losses.	The male plaintiff had been warned off the area by the Northern Land Council for alleged cattle stealing.	Charges had been laid which were groundless and subsequently dismissed, but during the 1991 season the charges were outstanding and it is inconceivable

that the plaintiffs would be permitted to proceed with the contract cattle mustering while such charges were outstanding; moreover, the evidence of Mr Kilby from the Northern Land Council was clear that the Northern Land council would not permit the plaintiffs to further muster at Bagetti in any event.	The plaintiffs had no contract with respect to mustering on Bagetti in 1991 or 1992.	In short, the alleged consequential losses are too remote.

As regards the claimed loss and damage with respect to the goods, it became clear in the course of the	earing that the plaintiffs' claims were grossly exaggerated.		I do not desire to say too much concerning the credibility of the plaintiffs, but there were many instances where their evidence was at odds with other witnesses as to the quantity and state of items rescued from the wreckage.	Where this is so, I prefer the evidence of other witnesses.

In assessing the plaintiffs' losses, it should be mentioned that in December 1992, the plaintiffs particularised a loss in respect of goods in the sum of
$52,265, a loss on the Davis contract estimated to be between $50,000 to $60,000, and a loss with respect to the Bagetti mustering of between $168,000 and $224,000.	These figures were subsequently revised downwards in the course of the hearing and eventually the property claim was made in the sum of $32,638.	I am of the view even that claim was too high.

I have found assessing the plaintiffs' loss for damaged and lost goods difficult.		No inventory was made of the goods loaded upon the road train prior to the trip.	No inventory of goods salvaged was made at the crash site.	The matter was further complicated by the exaggerations of the plaintiffs, both as to the state of the goods and their value.	The evidence is clear the female plaintiff was assiduous in rescuing all items of conceivable value from the site.	Some items deemed by the plaintiffs to be of no value were buried at the site.	The matter of the value of the plaintiffs' claims was further complicated by the variation between the plaintiffs' particulars of claim, exhibit P3, the plaintiffs' valuer Loveridge's estimates, exhibit P35, and the plaintiffs' instructions to their solicitors, exhibit P33.	The plaintiffs' oral evidence added further qualifications.

I shall deal with the plaintiffs' claims item by item as they appear in exhibit P3.	With respect to the 1975 cattle truck with crate: it was purchased by the plaintiffs for $5,000, but repainted and rebuilt with a tray and crate. It was salvaged for $3,500 (tlOS.5).	I allow $8,500.

With respect to the 1978 Toyota bull catcher: it was purchased for $4,150 (see exhibit P3) and was totally written off in the accident.	There was conflicting evidence as to its condition at the time of the mishap.	I reject the plaintiffs' evidence that it was in normal running order.	I

accept the evidence to the effect that by the time it was loaded its four wheel drive operation had ceased and that essentially it was only of value for spare parts.	Without substantial expenditure thereon I am satisfied this vehicle would have been useless for future bull catching operations. I am satisfied it had effectively reached the end of its working life at the time of the accident.	I allow $2,000.

With respect to the 1982 short wheel base Toyota bull catcher: it was purchased in 1988 for $3,000 and some $3,000

of work was done upon it.
damaged in the accident.

I do not accept it was severely It was sold for $4,000 which I

think represented its true value at the,time.	It was, both before and after the accident, an operable bull catcher.

The plaintiffs claimed loss in respect of 50 portable panels used for yarding in the bull catching operation.	New panels cost $98 each.	The plaintiffs' claim varied from the "December particulars" $5,350 down to $4,150 in exhibit P3. The plaintiffs gave evidence that they purchased 12 panels for $450, ie less than $40 each, and a further 40 panels at
$107 each.	Evidence was given that the panels were salvaged for $30 or $40 each.	Further evidence was given that 30 panels were sold to one Dean at $60 each, while 15 were sold to Winchester for $600.	Evidence was given that in all 45 of a total of 52 panels were recovered.	It is difficult to know what to make from all this evidence.	I do not  accept the plaintiffs' evidence either as to the number of panels

loaded or as to the alleged damage to them.	Mr Loveridge, whose expertise as a valuer I unquestioningly accept, suffered the manifest disadvantage of being reliant upon unsatisfactory instructions.	He said 50 panels would be worth some $4,000.	I accept this evidence.	Allowing for the salvage figures it is apparent that some loss occurred. Doing the best I can I allow $800.

I allow $400 for the four steel gate frames.

I allow $400 being Mr Loveridge's valuation in respect of the Philips frost-free two-door refrigerator.

I allow $500, Mr Loveridge's valuation, for the Kelvinator 500 litre freezer (the plaintiffs claimed some
$1,350 for this item which is one example of their exaggerated claims).

The plaintiffs claimed $700 with respect to the Engel car fridge.	Mr Loveridge valued it at $300.	I accept
Mr Loveridge's valuation.	After a consideration of the evidence I am satisfied that the Engel car fridge was in all probability on board the plaintiffs' own truck, rather than on board the defendant's road train.	No witness gave evidence of it being recovered at the site and I am satisfied that had it been at the site it would have been recovered.	on the balance of probabilities I think the plaintiffs had it aboard one of their own vehicles.

I allow $100 for the kitchen sink and three cupboards, that is, I again accept Mr Loveridge's estimate.

A child's tricycle, worth $80, was wrecked.

There was a bush freezer which Mr Loveridge valued at
$1,500, however the plaintiffs gave evidence that it was purchased at auction for about $1,000 (t27.1) and parts were
. salvaged from it.	I allow $800 in respect of that item.

I allow $100 in respect of the St John First Aid kit, which was another item where I prefer evidence other than that of the plaintiffs as to its state.

There was $62.99 (say, $63.00) allowable with respect to a roll of fencing wire purchased in February 1990 and buried at the site.

The plaintiffs claimed eight lost drums of diesel fuel.
This was another area of unsatisfactory evidence from the plaintiffs.	Evidence was given that 50% of the drums as opposed to their contents were salvaged.		Photographs taken at the site show apparently undamaged drums loaded for return to Katherine.	I propose to allow $250 in respect of lost fuel and lost deposits on drums.	I	can only say I	am satisfied there is some loss.

I allow $350, being Mr Loveridge's valuation, for the

Ingersol compressor.

I disallow the plaintiffs' claim in respect of the ten tonne hydraulic jack.	I accept the evidence of
Constable Hanson that it was found by him at the crash site and replaced on the defendant's vehicle for return to the plaintiffs.	I am unable to accept the plaintiffs' evidence the jack was not returned.

I allow $100 for the hessian used by the plaintiffs in their business.	I am satisfied that the hessian had some value, though nothing like that attributed to it by the plaintiffs.

I disallow the claim for the Coden portable radio. This is an item that I am satisfied, on the balance of probabilities, was not on board the road train at the time in issue.

The claim with respect to the hand tools suffers the same problems of estimating as do other matters, that is, exaggerated claims by the plaintiffs and lack of inventories, either at the point of loading or at the crash site.	The plaintiffs' claim in respect of tools varied between $2,100 and $1,890.	I am satisfied that the careful search at the scene of the mishap recovered all the tools lying about the overturned road train.	On the balance of probabilities I am not satisfied that the plaintiffs have

shown any loss in respect of lost or damaged tools.

Two cattle prodders were irreparably damaged and I allow $222 for those.

I	disallow the claim for fencing pliers.	I	consider this claim falls into the same category as that for general hand tools, that is, the plaintiffs have simply not satisfactorily proved their loss.	It may be the pliers were on one of the plaintiffs' vehicles which returned to Katherine independently of the road train.	The fencing pliers, had they been at the crash site, would I think in all probability have been recovered.

In respect of the claim for 40 fencing pickets, I am satisfied that the plaintiffs' claim for $800 therefor is exaggerated.	No doubt some pickets were bent and otherwise damaged beyond further use.	I allow $200 in respect of the pickets.

I allow $86 in respect of the fence strainers.

The plaintiffs' loss is therefor $14,871 summarised as follows:

ITEM	ALLOWED

1975 cattle truck and crate	$8,500

1978 Toyota bull catcher	$2,000		
50 portable panels	$800		
4 steel gate frames	$400		
Philips 2 door frost-free freezer	$400		
Kelvinator freezer	$500		
Kitchen sink and 3 cupboards	$100		
Bush freezer	$800		
St John First Aid Kit	$100		
Fencing wire	$63		
Lost fuel and deposits	$250		
Ingersol compressor	$350		
Hessian	$100		
2 cattle prodders	$222		
Pickets	$200		
Fence strainers	$86		
	$14.871		

The plaintiffs' claims against the	
first defendant	
are	

dismissed.	There will be judgment for the plaintiffs against the second defendant in the sum of $14,871.	I shall hear the parties on the questions of costs and interest.