Lee v Woolworths Limited

1. [1]

   HIS HONOUR: Mark Lee drove his semi-trailer from Windsor to Sydney on 14 March 2005. At some point during its journey from Queensland, part of the load in the truck became unstable and collapsed. This was not discovered by Mr Lee until he arrived at his final destination and the contents of his trailer were examined. Mr Lee was seriously injured when he attempted by himself to restack the failed load onto pallets.

2. [2]

   These proceedings relate to that incident and the responsibility, if any, of Wickham Freight Lines Pty Ltd for what happened. By reason of the professional and cooperative approach to this litigation taken by the parties and their legal representatives, only limited questions remain in dispute. The reasons that follow deal with those issues.

Background

1. [3]

   Mr Lee was employed by Williams Bulk Haulage Pty Ltd as a truck driver. Williams was sub-contracted by Wickham to haul loads out of Warwick in Queensland to Combined Distribution Management Pty Ltd at Yennora in Sydney in the performance of Wickham’s obligations pursuant to its contract with Combined Distribution. Goods transported to Yennora in this way were received into Combined Distribution’s depot for unloading and later secondary delivery to retailers whose stores could not accommodate a tautliner of the type driven by Mr Lee. Combined Distribution maintained its own fleet of rigid body lorries for that purpose. It also had its own dedicated staff that operated forklifts at the Yennora premises to unload goods on pallets from the rear of trailers such as that driven by Mr Lee. There is no dispute in these proceedings that although tautliners, with retractable curtain walls, were designed ordinarily to be loaded and unloaded by forklifts from the side, the physical set up at Yennora was restricted so that side access for forklifts was unavailable.

2. [4]

   The general unloading procedure at Yennora was as follows. Semi-trailers would arrive at the premises and be directed to a location inside the depot. The driver would park the vehicle, turn off the engine of the prime mover and go to the rear of the trailer. The rear doors of the trailer would be opened by the driver once the seal securing the load had been removed by depot personnel. The loads were on pallets. A semi-trailer usually carried a full load of 22 pallets of 11 rows standing two abreast. If a full load was present the forklift drivers would remove the last two pallets directly from the position they occupied on the truck during the journey. The next two pallets would then be moved by forklift using an extended tyne or a device to pull them closer to the rear of the trailer for direct removal by the forklift in its usual configuration. The remaining pallets on the trailer beyond the reach of a forklift operating from the rear required manual handling in order to bring them within range. In order for that to occur, a pallet jack would be forked up onto the tray of the trailer and the truck driver would use it to bring the remaining pallets to the rear of the truck. The pallets could then be forked off the trailer in the usual way. Until at least four of the pallets had been removed in this way there was insufficient space on the trailer for a driver to manipulate pallets using a pallet jack. In cases where less than 19 pallets were loaded, the pallet jack could be used from the beginning of the unloading procedure.

The pleaded case

1. [5]

   Mr Lee’s case is pleaded in his second amended statement of claim. A number of events overtook the relevance of much of that document, with the result that not all of the particulars of negligence pleaded against Wickham are now pressed. The particulars listed below, as indicated at page 178 of the transcript on day three of the hearing, are the only allegations upon which Mr Lee continues to rely:

2. [6]

   For the avoidance of doubt I hasten to observe that these particulars of negligence direct attention to what occurred or should have occurred at the Combined Distribution’s depot at Yennora and not elsewhere. Mr Lee’s case in broad form is that he should not have been left without assistance on his truck in that location to restack his broken load and that Wickham were under an obligation in the circumstances to provide that assistance.

3. [7]

   Several witnesses apart from Mr Lee gave evidence about what happened, as well as about the system employed at the Yennora depot for the receipt and handling of deliveries. It is necessary to review their evidence in some detail.

4. [8]

   Mr Lee gave evidence of what occurred on the day that he was injured. His first evidentiary statement contains the following material:

5. [9]

   Mr Lee’s second evidentiary statement contained the following relevant paragraphs:

6. [10]

   Mr Lee’s final evidentiary statement contained the following relevant material:

7. [11]

   Mr Lee gave further evidence in chief as follows:

8. [12]

   Mr Lee was later extensively cross-examined. Some of that was in these terms:

9. [13]

   The cross-examination also included the following:

10. [14]

    Mr Lee filled out an injury claim form. He was cross-examined about what was written on that document. Some of that cross-examination is as follows:

11. [15]

    In his first two evidentiary statements Mr Lee made no reference to having been greeted at the front door of the depot by Michael Jones, who worked for Wickham. Indeed, he was reminded in cross-examination that when he prepared his first statement, Wickham was not even a party to the proceedings.

12. [16]

    The cross-examination continued:

13. [17]

    Mr Lee gave evidence about his conversations with Mr Jones. He was challenged about the timing and content of any conversation that he had that suggested in any sense that Mr Jones told or directed or instructed him to restack or deal with the broken load. For example:

14. [18]

    Mr Lee was challenged about his recollection of events upon the basis that it proceeded upon the assumption that his truck had been fully loaded with 22 pallets. A Wickham document dated 14 March 2005, which was the delivery manifest referable to the load in question, indicated that he carried only 16 pallets. He was cross-examined about this as follows:

15. [19]

    This continued as follows:

16. [20]

    Further on this topic Mr Lee gave this evidence:

17. [21]

    Finally Mr Lee was cross-examined as follows:

18. [22]

    Mr Lee’s employer would also appear not to have given him any particular instructions. He gave this evidence:

19. [23]

    Mr Colvin is the current CEO of Combined Distribution Management. He provided a statement dated 3 November 2015. In 2005 he was the site manager at the Yennora premises. He was called by Mr Lee in his case. He said that Combined Distribution employed between eight and ten people in the office and warehouse. That included Troy Zantidis. Mr Colvin also said that in 2005 Michael Jones was the manager for Wickham at the Yennora premises.

20. [24]

    Mr Colvin described what happened when a truck arrived. He said that the leading hand/manager would call for one or two forklifts to assist in the unloading. Mr Colvin also said this:

21. [25]

    Mr Colvin was not cross-examined.

22. [26]

    Mr Zantidis worked as a forklift driver for Combined Distribution at the Yennora depot in 2005. He provided an evidentiary statement on behalf of Wickham. Part of that statement is in the following terms:

23. [27]

    Mr Zantidis was cross-examined:

24. [28]

    Mr Zantidis was never cross-examined to the point where he agreed that he had spoken to Mr Lee as Mr Lee asserted, or indeed even to agreeing that he might have done.

25. [29]

    In March 2005 Mr Jones was employed by Wickham as the Depot Manager at the Yennora premises. Mr Jones provided an evidentiary statement which included the following relevant material:

26. [30]

    The statement dated 17 March 2005 to which Mr Jones referred was in part as follows:

27. [31]

    One issue in these proceedings appears to be whether or not Mr Lee delivered his load into the Wickham area in the depot or the area under the control of Combined Distribution. Mr Jones was asked some questions about that:

28. [32]

    Mr Jones said that in 2005 Wickham to his knowledge had no policy concerning what would occur with respect to unloading if freight had moved or broken in transit. He said that the practice “would have been for the driver to restack the pallet so the forklift driver could take that pallet off the truck.” Mr Jones said that he had not “seen CDM forklift drivers assisting truck drivers with the repacking or restacking of broken loads from time to time.” He also denied that the arrangement was that drivers of Wickham trucks or Wickham subcontractors would go and speak to him on arrival at the depot or that he would call for forklifts to assist in the unloading process of trans-ship loads.

29. [33]

    Mr Jones also agreed that if there was a requirement for the loads to be moved manually, such as a load that could not be moved by a forklift, it was the responsibility of the driver to do the unpacking. However, he agreed with what the cross-examiner put to him concerning part of his 17 March 2005 statement as follows:

30. [34]

    The cross-examination continued as follows:

31. [35]

    Mr Jones said finally that he could not recall that Troy Zantidis advised him that Mr Lee had asked for any assistance with the unpacking of his broken load.

32. [36]

    Mr Eather is and has been the managing director of Wickham Freight Lines Pty Ltd since 2005. His duties require him to oversee all aspects of the company’s operation. He is involved in the practical aspects of the company’s business on a daily basis. Wickham is a shareholder in Combined Distribution Management Pty Ltd and Mr Eather is a director of that company. Wickham has traded since about 1993 and employs about 200 people.

33. [37]

    Williams performed about one percent of Wickham’s work, amounting to about two loads per week from its Warwick premises. All sub-contractors, such as Williams, provided their own semi-trailers and drivers.

34. [38]

    Mr Eather’s evidentiary statement referred to the Yennora premises as follows:

35. [39]

    Mr Eather gave the following evidence in cross-examination:

36. [40]

    At one point I asked Mr Eather to explain the unloading arrangements at Yennora:

37. [41]

    It will be apparent that Mr Lee’s evidence was centred on events that included the proposition that his load was a full 22 pallets. Mr Lee did not say in terms that that was his recollection. However, he did refer to four empty pallets being forked onto his truck onto which to stack the broken load once the last four pallets had been forked off the trailer in the first place.

38. [42]

    A Wickham document described as a “Contractors Payment Advice 13262” was referred to in Mr Lee’s cross-examination and was otherwise annexed to Mr Eather’s statement. It is the document that Wickham provided to Mr Lee, or in this case presumably Mr Galea prior to the handover of the trailer. The provenance of the document is not in doubt and it accompanied the driver to the delivery destination for validation by Wickham as a condition of payment.

39. [43]

    For presently relevant purposes, the payment advice contained a box which described the total number of pallet spaces on the particular load. In this case the document was completed indicating that 16 pallets were being carried. The document also contained a notation in handwriting that three pallets of Coca Cola had been received damaged, effectively confirming that it accompanied Mr Lee’s load on 14 March 2005. That date also appears on the document.

40. [44]

    There is no evidence to suggest that the document did not correctly record the number of pallets that were delivered by Mr Lee to the depot on the day in question. Mr Lee’s evidence that there were 22 pallets cannot in my view be accurate in the face of this document. That is not to say that Mr Lee was knowingly fabricating or falsifying his evidence in this respect. At one level, the precise number of pallets on the truck is a collateral issue in the scheme of this case. I am satisfied that Mr Lee was honestly mistaken in recalling the precise makeup of his load on this day.

41. [45]

    Mr Lee was cross-examined concerning certain aspects of a Workcover worker’s claim form completed by him or by his partner under his direction. Implicit in Mr Lee’s case against Wickham is the proposition that his delivery to the Yennora premises was to a discrete section of the premises controlled or somehow occupied or used exclusively by Wickham. The evidence reveals that the Yennora premises are owned by Combined Distribution.

42. [46]

    The form contains a number of questions for completion by the injured worker. One question on the form asks the worker to describe how the accident happened. Mr Lee’s response was in these terms:

43. [47]

    Another question on the form asked the worker “Is this one of your employer’s workplaces?” to which Mr Lee responded “yes”. He was then asked to give the name and address of the employer in charge of the workplace. To that question Mr Lee responded as follows:

44. [48]

    A later question on the same form asked, “Was this location controlled by another employer?” Mr Lee answered “yes” and said “CDM/Wickhams Freight Lines.”

45. [49]

    Mr Lee wrote to his employer following the incident, although not until 23 June 2005. That handwritten letter was in these relevant terms:

Factual issues

1. [50]

   Mr McCulloch of senior counsel for Wickham identified the central controversy in this litigation as whether or not, in the events that occurred, Wickham came under a duty of care to Mr Lee to assist him with the unloading or indeed to prevent him from unloading. Each of the bases relied upon depends on a determination of a number of facts that are controversial. They inform the assessment thereafter of whether or not a duty of the kind contended for existed and whether or not it has been breached. Mr Dooley of senior counsel for Mr Lee appears to have accepted this general analysis.

2. [51]

   It follows therefore that at least the following areas of factual controversy require determination by me:

   1. (1)

      Whether Mr Lee’s load contained 16 or 22 pallets.

   2. (2)

      Whether Mr Lee requested assistance from Mr Zantidis.

   3. (3)

      Whether Mr Zantidis refused or declined the request for assistance.

   4. (4)

      If Mr Zantidis refused or declined to assist, whether he did so based upon instructions from Mr Jones.

   5. (5)

      Whether Mr Jones gave Mr Lee any direction that enlivened a duty of care.

   6. (6)

      Whether the unloading procedure undertaken by Mr Lee occurred in the way he described.

Mr Lee’s evidence

1. [52]

   In relation to the resolution of all of these issues, Mr McCulloch contended that Mr Lee should not be accepted as a witness of truth. He reasoned as follows.

2. [53]

   First, Mr Lee’s 23 June 2005 letter to his employer makes it plain that he accepted that he was delivering to the Combined Distribution facility. The letter contains no reference to Wickham or Mr Jones. It is also to some extent (although not exclusively) consistent with the Workers Compensation claim form.

3. [54]

   Secondly, in his first evidentiary statement, Mr Lee refers to a single conversation with Mr Zantidis during which Mr Zantidis refused to help him. Mr Lee referred to Mr Zantidis sitting on his forklift “throughout the whole of the process” waiting for Mr Lee to move the cans of Coca Cola onto the new pallets. There is no mention at all in that statement of Mr Jones.

4. [55]

   Thirdly, in his second evidentiary statement, Mr Lee refers to having attended the Wickham’s office, speaking to Mr Jones, providing him with the running sheet and being told where to park. He then refers to looking for Mr Jones once his request for help from Mr Zantidis was refused. Mr Lee states that he could not find Mr Jones and refers to a later conversation with Mr Zantidis when he confirmed what he had said earlier about not being able to assist him.

5. [56]

   Fourthly, in his third evidentiary statement, Mr Lee refers to having met Mr Jones at 7am when he opened the roller door and directed him where to place his vehicle. It is for the first time in this statement that that Mr Lee provides the details of what he said took place, including the load containing 22 pallets and the way in which he went about unloading it. Mr Lee also refers in this statement to a further, new, conversation with Mr Zantidis in which he referred to his load not being the only one that had been damaged. The reference to Mr Zantidis taking photographs of the load is also mentioned for the first time.

6. [57]

   Finally, during his further oral evidence, Mr Lee went further and asserted that Mr Jones was in fact present on the truck and was therefore aware of the collapsed load. Mr Lee said that Mr Jones directed him to reload the collapsed pallets.

7. [58]

   Mr McCulloch submitted that Mr Lee’s evidence seeking to implicate Mr Jones was a recent invention. It had never been raised before Mr Lee gave it in court before me. He submitted that Mr Lee was not an accurate historian and was therefore an unreliable witness whose entire case was based upon the mistaken assertion that his load contained 22 pallets. When cross-examined about this discrepancy Mr Lee maintained that his recollection was correct. However, he ultimately conceded that if his load contained only 16 pallets then the version he originally proffered could not have occurred as he initially claimed. Mr Lee conceded that it was hard for him to remember what had occurred given that he was in severe pain and taking medication to relieve it.

8. [59]

   Mr McCulloch contended that Mr Lee’s evidence that he was present when Mr Jones gave directions to the forklift drivers, especially Mr Zantidis, to unload trucks, was “simply wrong.” Mr McCulloch submitted that it was also untrue and manufactured to enhance Mr Lee’s case. Both Mr Zantidis and Mr Jones denied it was accurate. Mr Zantidis said this:

9. [60]

   Mr Jones said this, when cross-examined by Mr Dooley:

10. [61]

    Mr McCulloch went as far as to suggest that Mr Lee “was evasive and argumentative and acted as an advocate in his case.” He submitted that Mr Lee’s demeanour during cross-examination “was consistent with an unwillingness to assist.”

11. [62]

    Mr Dooley argued that there was no basis for contending that Mr Lee was other than someone with serious injuries giving an honest account of what he recalled had caused them. He argued in effect that differences in accounts or apparent imperfections in Mr Lee’s recollection were far from explicable upon the single ground that they were spawned by some kind of dishonest self-interest. The events that give rise to these proceedings are now well over ten years old and fading memory is something that is to be expected. Even more so might this be anticipated in the case of Mr Lee who remains in severe pain, notwithstanding several major spinal operations, and requires constant analgesic support. It is also implicit in Mr Dooley’s submissions that Mr Lee was not obviously accustomed to interrogation in a courtroom and should be understood as completely guileless.

12. [63]

    In my opinion Mr Dooley’s assessment is to be preferred. This is explained in more detail in what follows. However, it is important to observe that the issues requiring resolution in this case do not depend upon a finding that Mr Lee gave false evidence or tailored his recollection to suit his case. It seems to me that there is convincing, if not in some respects overwhelming, evidence quite removed from Mr Lee’s evidence to support findings on the balance of probabilities that Wickham neither owed nor breached a duty of care to Mr Lee in the particular circumstances of this case.

Factual findings

1. [64]

   I have earlier dealt with the question of whether Mr Lee’s load contained 16 or 22 pallets. The documentation accompanying the load specified 16 pallets. Mr Lee had on previous occasions delivered loads of 22 pallets. I consider that he described what occurred when unloading a truck containing 22 pallets. No evidence beyond Mr Lee’s frail recollection supports the contention that other than 16 pallets made up the entire load on the day in question.

2. [65]

   Sight must not be lost of the fact that the difference between 16 and 22 pallets only generates attention to the question of what Mr Lee contended was the involvement of Mr Jones in the general or customary method of unloading trailers at the depot. It is entirely collateral to the issue of what was to happen, or on Mr Lee’s account what should have happened, in situations where a broken load required restacking. It does not directly inform the question of the existence of a duty with which Wickham ought to have conformed.

3. [66]

   As I have already indicated, it is my view that the subcontractors payment advice is decisively in favour of establishing the information that appears on its face. Indeed, no one, including Mr Lee, has contended that it is erroneous. Mr Lee has effectively been forced to accept that his load conformed to the paperwork that accompanied it. He conceded that there were only 16 pallets on his truck in light of what was written on that document. I consider that to be a realistic and wholly uncontroversial concession.

4. [67]

   I am also not satisfied that Mr Lee requested any assistance from Mr Zantidis. Mr Zantidis was a disinterested party who I consider gave his evidence in an honest and forthright way. He did not recall speaking to Mr Lee in the terms alleged or in fact at all. It follows as well that I am satisfied that Mr Zantidis did not refuse Mr Lee’s request for help.

5. [68]

   It is all in my assessment without particular significance in any event. Mr Zantidis was employed by Combined Distribution. He was never employed by Wickham and was unable to represent them in any official capacity either directly or indirectly. Mr Zantidis’ agreement to assist Mr Lee, even assuming it had been provided, would not have bound Wickham to whatever consequences flowed from such an agreement. Conversely, the consequences of any failure by Mr Zantidis to assist Mr Lee would also not have operated to Wickham’s detriment.

6. [69]

   Mr Zantidis gave evidence that he would assist in the restacking of a broken load, implicitly by getting off his forklift, if he was not busy. He was neither under instructions or directions from anyone at Wickham to do so, and his “obligation” to do so was never more robust than happenstance, where the absence of other pressing duties provided opportunity for him to assist if he chose to do so.

7. [70]

   Nor am I satisfied that Mr Jones played any relevant role in this series of events. Any refusal by Mr Zantidis to assist Mr Lee had nothing to do with anything Mr Jones did or failed to do. I am not satisfied it was the result of any instruction from Mr Jones. Once again, Mr Jones was employed by Wickham. The evidence does not establish the existence of any relationship between Wickham and Combined Distribution that permitted or obliged Mr Jones to direct Mr Zantidis what to do in performing his work as an employee of Combined Distribution. Similarly, the evidence does not establish that Mr Jones did so.

Discussion

1. [71]

   In my opinion the facts of the present case establish that Wickham did not owe any relevant duty of care to Mr Lee.

2. [72]

   Mr Lee was employed by Williams as a truck driver. He was in that capacity responsible for delivering his load to destinations nominated by his employer. In the circumstances of this case, that was a load marked for trans-shipment following delivery to the Combined Distribution depot at Yennora. It was not a load that he was required to deliver to Wickham, the corporation to which his employer was subcontracted. Even if it had been a load destined for delivery to the discrete section of the Yennora depot leased by Wickham, the position would in my view have been no different.

3. [73]

   The load was on pallets. Forklifts supplied by Combined Distribution were used to remove the pallets from trucks such as Mr Lee’s truck. That was done from the rear of the trailer. There was no loading dock and forklifts at the Yennora depot did not drive onto trailers such as Mr Lee’s trailer.

4. [74]

   Drivers like Mr Lee were required to facilitate the unloading process for pallets that were beyond the reach of a forklift. Pallet jacks were utilised for that purpose. Loads that had broken or come away from pallets could not be handled by forklift. Such loads had to be restacked on pallets before that could be done. The pallets for that procedure were supplied by Combined Distribution to drivers such as Mr Lee for restacking before they could be manhandled by pallet jack to the rear of the trailer by a driver.

5. [75]

   No part of the restacking process was done by forklift drivers unless they volunteered when other work commitments permitted them to do so. In all other cases the task was performed by the driver without assistance. That work was part of a driver’s responsibility. Mr Colvin and Mr Jones confirmed that fact. Mr Lee was injured in the course of performing that very task.

6. [76]

   It does not in my view make any difference whether Mr Lee asked for assistance that was refused or did not ask for assistance at all. Neither Combined Distribution nor Wickham was under any legal obligation to assist Mr Lee to restack his broken load. To the extent that it may be necessary to do so, and having regard to the way in which the case was conducted, I am satisfied that Mr Lee did not ask Mr Jones for assistance, or for assistance to be provided, in the restacking task. Mr Jones’ 17 March 2005 statement, which is effectively contemporaneous with the incident causing Mr Lee’s injuries, is wholly silent on the question of assistance. Indeed, it is wholly silent on the issue of any contact or communication between Mr Lee and Mr Jones on this particular topic, although Mr Jones did apparently recall Mr Lee “complaining about how heavy the pallets were.” References in Mr Lee’s evidentiary statements to Mr Jones only emerge late in the day. I do not accept that Mr Lee’s account of having spoken to Mr Jones is worthy of acceptance in the circumstances. In short, I do not believe that any such conversation as Mr Lee described occurred.

7. [77]

   As I have already indicated, Mr Lee did not ask Mr Zantidis for assistance. The issue is less critical to the extent that Mr Zantidis was not employed or controlled by Wickham. However, I believe Mr Zantidis’ account that Mr Lee did not ask him for assistance as far as he could recall.

8. [78]

   The facts do not in my opinion enliven circumstances where Wickham, which was not involved in the unloading activity, and was not the entity that was taking delivery of the goods, can be said to have done or to have failed to do anything that created a risk of foreseeable injury. Mr Lee’s case must necessarily depend upon the establishment of a duty by a stranger to take positive steps to interfere or become involved in an activity or enterprise with which it was not otherwise directly involved or concerned. The manhandling of pallets while still on the trailer, in a location where they could not yet be reached by forklift, was Mr Lee’s task and not as such an activity in which Wickham played any role. Wickham did not owe Mr Lee a duty of care to prevent the risk of injury arising from the manual restacking of a dislodged load without assistance. That duty was undoubtedly owed to Mr Lee by Williams as his employer: see Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301; Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 at [34] – [35].

9. [79]

   In Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349 at [12] the Court said this:

10. [80]

    In Andar at [57], the following passage appears:

11. [81]

    Where a specialist contractor has been retained to perform specialist contract services, the head contractor is not liable for injuries sustained by persons as a result of the specialist contractor’s work: Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 at [20]. In Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167, Basten JA reviewed this category of cases where a head contractor may be sued:

12. [82]

    The present case does not come within any of these three categories. Wickham exercised no control over Mr Lee. That control was exclusively reposed in his employer. No plant failed and there was no fault in the condition of the premises. It is also apparent that the activities of others at the depot were entirely collateral to the creation of the danger that caused the damage.

13. [83]

    Section 5B of the Civil Liability Act 2002 provides as follows:

14. [84]

    I accept that the risk was foreseeable and not insignificant. Even though due allowance must be made for the different positions of Wickham on the one hand and Mr Lee’s employer on the other hand, the risk that someone in the position of Mr Lee, performing bending, twisting and heavy lifting movements in the confined spaces of a loaded semi-trailer might suffer injury to his back is plainly foreseeable by his employer and also by Wickham in the particular circumstances of this case. The risk is far from being of little or no moment and in my view is clearly not insignificant.

15. [85]

    However, it does not seem to me to be the case that a reasonable person in Wickham’s position would have taken any precautions to prevent what happened to Mr Lee. The most obvious reason for that is that he was delivering goods to Combined Distribution for trans-shipping by that company to retail outlets that could not accommodate semi-trailers at their premises. Mr Lee was not delivering goods to Wickham and Wickham was not receiving them. Furthermore, Wickham was not assisting in the unloading of the goods and Wickham personnel were neither concerned with nor involved in the unloading process or procedures.

16. [86]

    Even upon the assumption that Mr Lee were delivering the goods directly into the hands of Wickham staff, a reasonable person in Wickham’s position would in my view have been entitled to do nothing. Whatever view one might form concerning the morality of failing to provide manual assistance to a worker struggling with a physical task, the duty to assist him fell on his employer and not upon Wickham. Wickham was entitled in the circumstances of this case to stand by and to wait until the load had been restacked ready for removal by forklift. It was entitled to refuse a request for assistance if it were made.

17. [87]

    There is generally no obligation to assist another: Stovin v Wise [1996] AC 923 at 931. Gleeson CJ in Swain v Waverly Municipal Council [2005] HCA 4; (2005) 220 CLR 517 said this at [5]:

18. [88]

    A reasonable person may do nothing. McHugh J in Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 said this at [38]:

19. [89]

    What a reasonable person would do in particular circumstances is to be judged or assessed by reference to the relationship (if any) between a plaintiff and the putative defendant and to the characteristics of the plaintiff: Shaw v Thomas [2010] NSWCA 169 at [40]. In the present case Mr Lee was not in a recognisable relationship with Wickham at all. He was a truck driver delivering a load to a third party. His position was in my view analogous to that of the driver of a meat truck delivering carcasses to a refrigerated depot or a retail outlet or the driver of a brewery truck delivering kegs of beer to a hotel. It would not be remarkable for those taking delivery of such goods to do nothing even if it was or should have become obvious to them that the driver was struggling with the task of manually handling the carcasses or kegs. This would be so whether or not he or she had asked for some assistance with the task. The fact that such a request for help would or might evoke a sympathetic response from many of us does not reliably inform the existence, far less the scope and content, of what is in the final analysis a legal obligation or duty.

20. [90]

    In this context it is timely to recall what was said by the High Court in Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [49]:

21. [91]

    The United Kingdom Supreme Court recently considered whether or not the police could be liable, in the case of the death of a woman, following an emergency call to which the police failed adequately to respond, in Michael v Chief Constable of South Wales Police [2015] 2 WLR 343; [2015] UKSC 2. As noted at (2015) 89 ALJ 558:

22. [92]

    Wickham may well have rendered itself liable to Mr Lee if through its servants or agents it had intervened to assist Mr Lee and in so doing somehow caused or contributed to his loss and damage. The Civil Liability Act exception in relation to the liability of a Good Samaritan would presumably not protect Wickham unless its (hypothetical) intervention was in response to an emergency. The position in which Mr Lee found himself in this case fell far short of an emergency.

Further matters

1. [93]

   Mr Dooley submitted that he could draw support, in his arguments in favour of the existence of a duty of care, from the terms of the Transport Agreement between Wickham and Woolworths Ltd dated 10 October 2006. (Although the agreement post-dates Mr Lee’s accident, it was tendered by Wickham and no issue about its application to these proceedings has been raised).

2. [94]

   Wickham transported goods for Woolworths in accordance with the terms of the Transport Agreement. Presumably, Wickham’s subcontract with Williams was caught by the terms of that agreement. Wickham is described as “the Carrier” in the agreement, which contains the following provision:

3. [95]

   The term “Driver” is defined in Schedule 1 to the Transport Agreement to mean “any driver of a Vehicle that is used by the Carrier in performing the Services, irrespective of whether that person is an employee, agent, contractor or sub-contractor of the Carrier.” That definition would clearly include Mr Lee.

4. [96]

   The precise way in which Mr Lee asserts that these provisions support his case is not entirely clear. The terms of the agreement are not pleaded or referred to in the second amended statement of claim. The provisions do not in terms specify that Wickham should have done any of the things, or conformed to any of the particulars of negligence, pleaded against Wickham in the second amended statement of claim. Perhaps more fundamentally, Mr Lee has not by evidence established any failure by Wickham to comply with the terms of clause 20.2(e) of the Transport Agreement.

5. [97]

   There is also a difficulty for Mr Lee in terms of causation. Mr Lee has not established either that compliance by Wickham with the terms of the Transport Agreement would have resulted in Wickham adopting a regime or system for unloading trucks at the Yennora depot that would have extended to or included any of the matters particularised as breaches of the duty for which Mr Lee contends, or that it would have prevented the injuries that Mr Lee sustained if it had.

6. [98]

   Wickham raised and relied upon a defence pursuant to s 151Z (2) (c) of the Workers Compensation Act 1987. By reason of my conclusion that Wickham is not liable in damages to Mr Lee, it is neither possible nor necessary to consider that defence.

7. [99]

   Finally I note that Mr Lee relied upon two experts in support of his case on liability. The first was Mr Phillip Buckland, a consulting engineer, whose reports dated 28 April 2014 and 13 June 2014 became exhibits in these proceedings. I have not found it necessary to refer to this evidence. That is because Mr Buckland’s evidence and opinions were necessarily directed to the question of breach of duty. His opinions did not, and could not, inform the anterior legal question of the existence of a duty in the first place.

8. [100]

   The second expert upon whose opinion Mr Lee sought to rely was Mr Ron Beckett. His report dated 5 August 2014 was rejected by me in light of Wickham’s objection to its tender. That objection was based upon the contention that Mr Beckett failed to demonstrate a process of empirical or scientific reasoning based upon his training, education or experience and his (unchallenged) expertise as a consulting engineer. I do not consider that Mr Beckett’s report conforms to the constraints necessary for reception as an expert opinion. In short, Mr Beckett made statements presumably intended to be supported by a wealth of documents attached to his report that were never utilised or analysed in a way that reliably or discernibly supported the views he expressed.

9. [101]

   In the events that occurred, rejection of Mr Beckett’s report was of no consequence. That is once again for the reason that Mr Beckett was concerned with questions of breach of duty and not with the issue of whether or not a duty existed at all.

Conclusion and orders

1. [102]

   In my view Wickham neither owed nor (for that reason) breached any recognised duty of care to Mr Lee. It follows that the proceedings should be dismissed with costs.