Hobbs v Petersham Transport Co Pty Ltd
124 CLR 220(Judgment by: Barwick CJ)
Between: Hobbs
And: Petersham Transport Co Pty Ltd
Judges:
Barwick CJMcTiernan J
Menzies J
Windeyer J
Owen J
Subject References:
Contract
Bailment
Carriage of goods
Due care
Failure to deliver
Onus of proof
Duty of bailee
Sub-contractor
Judgment date: 30 June 1971
Sydney
Judgment by:
Barwick CJ
A.S.E.A. Electric (Australia) Pty Ltd (the plaintiff) needing in 1957 to move certain electrical equipment from a wharf in Sydney to Ashford, a town in the north-west of New South Wales more than 500 miles distant from Sydney, engaged Petersham Transport Co Pty Ltd (the defendant) to carry this equipment to that town. The contract of carriage was formed by an exchange of letters, which contained no special terms. The defendant thereafter by a formal agreement contracted with a partnership, Hobbs Bros. (the third party) to carry the equipment from the wharf to Ashford. Neither the defendant nor the third party was a common carrier.
The third party uplifted the goods from the wharf in Sydney placing them on a 1956 model International articulated vehicle which was described as "near new" and in top condition. It had been regularly serviced over the preceding months of its use, being mostly driven by the driver who drove it on this occasion. This man was a competent driver and as well an experienced motor mechanic. The equipment, though heavy, did not constitute an undue load for the vehicle. When a few miles north of the town of Inverell and some 420 miles on its journey towards Ashford and whilst travelling at about twenty-five miles per hour on a level piece of road approaching a slight incline upwards on a gradual bend, an axle of the bogie of the trailer of the vehicle broke "behind what they call the backing plate of the brake drum". The vehicle overturned, the driver losing control of it. As a consequence the electrical goods were severely damaged. They were not delivered to Ashford as promised to the plaintiff by the Petersham Transport Co Pty Ltd and had to be replaced.
After a lapse of some five years, namely in 1962, the plaintiff commenced an action in the Supreme Court of New South Wales against the defendant for breach of the contract of carriage alleging that the defendant had promised to use due care, skill and diligence in carrying certain goods: and a breach of that promise. In a second count the plaintiff sued the defendant as a carrier who had received the goods for not safely carrying the goods and for having damaged and spoiled them by its negligence. The defendant issued a third-party notice in January 1966 and declared against the third party claiming damages for breach of a promise to use due care, skill and diligence in the carrying of the said goods from Sydney to Ashford. The defendant in a second count also sued the third party for negligence in the carriage of the goods. Unless the defendant is liable to the plaintiff the defendant will have no basis for a verdict against the third party. As I am of opinion for reasons I shall give that the plaintiff should not succeed against the defendant, I have no need to consider any special relationship which might have existed between the defendant and the third party nor the possibility of any relationship between the plaintiff and the third party. I shall consider only the case made by the plaintiff against the defendant on its pleadings and, as well as I can gather it from the transcript of evidence, in its conduct of the case. That case depended entirely upon the promises alleged in the first count as there was no evidence to support the second count founded on the defendant's receipt of the goods.
It is necessary to refer to certain evidence which was given at the hearing of the action and of the claim against the third party. The driver of the vehicle inspected the broken axle and the portion of the vehicle from which it had broken away immediately after he had recovered himself from the immediate effects of the accident. He was asked these questions and gave the respective answers:
"Q. Was there any damage to the axle or the hub in the area of that break? A. No, it was a clean break.
Q. Before you reached the position where the accident happened did you notice anything unusual about the way in which the vehicle behaved? A. Not a thing.
Q. Did you find on examination of your vehicle that the fracture was, as you call it, against the backing plate of those wheels? A. Yes.
Q. And that the remainder of the axle still attached to the off side wheels was jammed underneath the trailer. A. Yes.
Q. You have had experience as a mechanic on axles? A. Not necessarily, do you mean as far as breakages.
Q. Have you seen a fractured axle before this day? A. Yes, quite a few.
Q. You found this clean break? A. Yes.
Q. Fresh? A. Yes.
Q. No apparent indication that there was a previous fracture in the axle anywhere near the outside of it? A. None whatsoever.
Q. You said you had seen quite a few fractured axles in your time? A. In my mechanical career.
Q. Is this the sort of condition which can occur in an axle after wear? A. No, it was like an act of God-if it happened, it hit.
Q. I suppose in the course of your mechanical career you had had occasion to see an axle which was developing a hair crack? A. Yes.
Q. If you see an axle with such a crack in it, then of course it is a warning sign to do something about it? A. You don't drive it.
Q. But of course, when you looked at the axle that was still on the wheels it was fractured right through? A. Yes.
Q. And of course you could not know for sure how it looked before that fracture had taken place? A. No. The mechanic checks the axles.
Q. What was that again? A. The mechanic did the checking of the axles if necessary-any service.
Q. I would like to clarify one final thing: While you were working for Hobbs Bros. did you drive this prime mover fairly constantly? A. Every trip it made.
Q. Did you have it on the road for the full working week? A. One week return trip.
Q. And then may be when it came back you had a day off and then you would be on the road again; is that the sort of routine you had? A. It went in for service and I rested, and I loaded and took off."
A detective senior constable of police who came upon the scene of the accident almost immediately after it had happened gave evidence as to the appearance of the broken axle. This officer had had experience as a motor mechanic over some two years and had worked on heavy vehicles. In addition, during his eight years of service in the police force he had very frequently investigated motor car accidents. On probably four occasions he had investigated accidents involving broken axles. He said he made the inspection of the bogie axle of the vehicle. He was asked and answered these questions:
"Q. Did you notice anything in particular about the front axle of the bogey? A. I saw that the front axle of that rear section of the trailer had been broken and it appeared to be a clean break.
Q. In what area was that; where was the break? A. The break was at that point where the hub or wheel of the rim fitted onto the shaft of the axle, immediately behind the brake lines on the backing plate.
Q. In this area was there any sign of damage or impact at all? A. No."
A witness who was the senior shipping and contracts clerk of the plaintiff in 1957 went to the scene of the accident with the senior engineer employed by the plaintiff. He was asked these questions:
"Q. Mr. Badman, did you examine the broken axle on this vehicle? A. I saw it. I did not strictly examine it from an engineering point of view.
Q. No, but you saw it, did you? A. I saw it.
Q. Was Mr. Fairley with you? A. He was.
Q. What is his particular line? A. He is the senior engineer-or was at the time-with the company.
Q. Was Mr. Fairley with you? A. He was.-or was at the time-with the company.
Q. Is he here today? A. He was, but probably counsel could answer that one better, to my knowledge.
Q. Have you seen him here today? A. I have seen him, yes.
Q. And I suppose you saw him looking at the damage to the stator, did you? A. At the scene of the accident.
Q. At the scene of the accident? A. Yes.
Q. And no doubt you saw him looking at the state of the axle of the trailer? A. Yes.
Q. You saw him examining it, did you? A. Yes.
Q. You were there within three, four or five days of this accident? A. Yes. The accident was on the Wednesday; we arrived on the Sunday."
The driver of the vehicle also gave the following evidence with respect to the servicing of the vehicle:
"Q. You mentioned that the vehicle which was comprised of the prime mover and the trailer, the vehicle in this accident, was serviced to your knowledge regularly? A. On each return trip.
Q. That was serviced by a motor mechanic in the employ of Hobbs Bros., Mr. Looker? A. That is correct.
Q. He was in charge of the garage there? A. That is right.
Q. When you say serviced it, did you see him service it? A. Yes.
Q. Did you mostly assist him if he wanted any assistance? A. I would just do the greasing and oil changing-the the mechanical checking.
Q. You say from your observation both as a driver of these vehicles and a driver with mechanical experience that the trailer was in apparent good mechanical condition before it undertook this trip? A. A1 condition.
Q. When you were driving along before the accident, as I understand your evidence, the first indication you got that you are in trouble is that suddenly the vehicle is over on its side? A. That is correct. It happened so quick.
Q. Where was this depot? A. Victoria Road, Rozelle.
Q. At that depot was there a workshop? A. The workshop is in Leichhardt.
Q. What workshop is that? Was it Hobbs Bros. workshop? A. It was Hobbs Bros. yard. All the trucks got serviced there.
Q. When you came to work you turned up at the Rozelle depot to drive the truck? A. No, I picked it up at Leichhardt at the garage.
Q. After you finished unloading it you would then bring the empty vehicle to the Rozelle depot? A. I handed documents in and took it up for service.
Q. To where? A. To the garage at Leichhardt.
Q. There was a Mr. Looker at Leichhardt? A. Yes, he was in charge of the garage.
Q. He had the workshop there, did he? A. That is right.
Q. As far as you know all the servicing of all the vehicles in the Hobbs Bros. fleet was done by Mr. Looker at the Leichhardt depot? A. Yes.
Q. You do not know of any servicing being done at any other garage or service station apart from that? A. No, unless there were repairs to be done on the road or something like that"
The witness said he used to drive this particular vehicle every week and that no one else had driven it except a mechanic moving it in the garage.
"Q. You, of course, have no particular recollection of any maintenance being done to this vehicle on the day that you drove it to the wharf? A. It could have happened in the morning.
Q. But you cannot remember? A. I can't remember.
Q. Your yourself did not stay with the mechanic while he did all the maintenance to this vehicle that might have been necessary? A. Not all the time.
Q. I take it you would not yourself say at any particular time exactly what maintenance to the vehicle was necessary because that was his job to look after, wasn't it? A. He would take a report off me first.
Q. He may ask you what sort of trip you had and if anything special had happened you would mention it? A. Yes, he would ask if anything needed attention.
Q. He seemed to be relying on you to tell him if anything could be done or anything needed to be done? A. Unless he found something himself when he examined it.
Q. When it was a question of examining the vehicle to see whether something needed to be done which you had not mentioned then you left that to Mr. Looker? A. That is correct.
Q. And the place at-the one workshop at Leichhardt had to do the servicing both of the inter-state vehicles and the local vehicles? A. That's right.
Q. Was Mr. Looker the only mechanic there? A. No, he had an assistant, an apprentice.
Q. One apprentice? A. I cannot remember off hand, but I think he had an assistant as well.
Q. Did you sometimes see that assistant doing mechanical work on vehicles? A. No, he never checked anything. He was only doing minor work in the garage. Mr. Looker did all the service checking.
Q. And you believe that Mr. Hobbs in fact ensured that Mr. Looker in fact did it? A. Sometimes I was there doing the service with him."
The action and third party claim were heard by a judge without a jury. The learned trial judge found a verdict for the plaintiff in the principal action and for the defendant in the claim against the third party. The verdict in each case was general. But as the judge gave reasons for his findings, the lack of evidence to support one of the counts need not be fatal to the verdict. He concluded that the vehicle was being driven at a proper speed and in a proper manner, that the driver had no warning of the impending fracture of the axle at a time when he could have avoided its consequences, and that he did exercise all the care that could have been expected of him. However he held that, on the authorities, there were circumstances in the case from which "One can say that there has been a prima facie case of negligence established by the plaintiff that is to say by reason of the non-delivery of the goods". He found that the failure to deliver was caused "as a result of the actual fracturing so causing the accident and further that this can be caused by a fracture of an axle warning of which might be discovered and remedied by careful and proper inspection". He held that there was a duty on the defendant company to institute and carry out such an inspection as might have revealed the development of the fracture which finally caused the mishap. He thought it would be reasonable for an owner of heavy vehicles periodically to check for any indications of fractures which might be about to occur, to institute a proper and regular system of maintenance to discover any signs of cracking of an axle and to take corrective action if they did occur. The trial judge commented on the absence of any evidence from Mr. Looker or any explanation of his failure to do so and the failure of the surviving member of the partnership of Hobbs Bros. to give any evidence of any system of maintenance or inspection carried out at the depot. He placed some weight on the absence of these witnesses notwithstanding the considerable lapse of time between the accident and the date of the trial. He concluded:
"In the absence of any direct evidence as to a system of maintenance or as to the particular maintenance carried out on this vehicle I have come to the conclusion that as a fact I would not accept that the accident occurred without any negligence on behalf of the partnership."
Therefore for want of such satisfaction he came to the conclusion that the plaintiff must succeed. On appeal, the Supreme Court, Court of Appeal Division [F1] , by majority supported the findings of the trial judge.
The defendant, a private carrier, was sued in the first count not as a bailee on whom lay the onus of establishing his exercise of due care for the goods bailed to it: but for breach of its promise to carry the goods safely, that to is say, with due care. Indeed, that probably was the only basis on which the plaintiff had any rights against the defendant: the defendant had not itself received the goods. To procure the services of another to carry the goods was not itself a breach of that promise. But the failure of the sub-contractor to use due care in the carriage of the goods would result in a breach by the defendant of its promise to the plaintiff.
The onus of establishing the breach of contract, as in the first count of the declaration was undoubtedly upon the plaintiff. Non-delivery of the goods furnished prima facie evidence of a breach of the promise. But in such an action it does no more. Yet the plaintiff seems to have claimed that such evidence placed an onus on the defendant; and the learned trial judge, accepting that view, has not been satisfied by the defendant, presumably, that it was not in breach of its promise to the plaintiff and not negligent in the carriage of the goods.
In my opinion, the defendant faced with the evidence of non-delivery of the goods was in much the same position as a defendant in an action for negligence in the driving of a motor vehicle in which the circumstances of an accident provide a basis for an inference of such negligence. There, as I think, if the defendant provides an explanation of the accident which destroys the ground for that inference, the position is that the plaintiff is without evidence of negligence on the part of the defendant. See Nominal Defendant v Haslbauer [F2] and cases there cited; Piening v Wanless [F3] . So here it seems to me that once the non-delivery of the goods is explained as it was explained, there is no room for an inference from the fact of non-delivery of the goods that the defendant had failed to take due care of the goods. In my opinion, once such an explanation is given and accepted, the defendant is not required to go further and establish that he could not have prevented the road accident which happened by any exercise of due care in the maintenance of the vehicle. To require the defendant to do so would, in my opinion, be pressing the evidentiary consequence of the non-delivery too far. To so require proof by the defendant would shift the onus to the defendant to disprove an absence of breach. That, in my opinion, is an unwarranted step. The onus of proving breach of the promise is always with the plaintiff. The matter would be otherwise in an action founded on a bailment of the goods.
Where a defendant in an action such as the present has been shown by positive evidence to be negligent a consequential onus may rest on him to disprove a causal connection between that negligence and the loss. In this connection reference should be made to Brook's Wharf and Bull Wharf Ltd v Goodman Bros. [F4] . There Lord Wright referring to remarks of members of the House of Lords, Wright referring to remarks of members of the House of Lords, not found in the Law Reports but quoted by Kennedy L.J. in Joseph Travers & Sons Ltd v Cooper [F5] , said this:
"The first passage is quoted from the judgment of Lord Loreburn in the following words: `Here is a bailee, who, in violation of his contract, omits an important precaution, found by the learned judge upon ample evidence to be necessary for the safety of the thing bailed to him, and which might have prevented the loss. And his breach of contract has the additional effect of making it impossible to ascertain with precision, and difficult to discover at all, what was the true cause of the loss. I cannot think it is good law that in such circumstances he should be permitted to saddle upon the parties who have not broken their contract the duty of explaining how things went wrong. It is for him to explain the loss himself, and, if he cannot satisfy the Court that it occurred from some cause independent of his own wrong-doing, he must make that loss good!' Then Kennedy L.J. says: `And so Lord Halsbury: `It appears to me that here there was a bailment made to a particular person, a bailment for hire and reward, and the bailee was bound to show that he took reasonable and proper care for the due security and proper delivery of that bailment; the proof of that rested upon him'.
In the present case, the stealing of the goods being admitted, the plaintiffs have given evidence that they have taken all reasonable precautions to protect the goods against the risk of theft, and they say that they have satisfied the burden of proof which rests upon them and that they are outside the rulings I have just quoted.
They further rely on a statement of the rule given (in a dissenting judgment, it is true) by Lord Dunedin in Ballard v North British Railway Co [F6] Lord Dunedin there said: `I think this is a case where the circumstances warrant the view that the fact of the accident is relevant to infer negligence. But what is the next step? I think that, if the defenders can show a way in which the accident may have occurred without negligence, the cogency of the fact of the accident by itself disappears, and the pursuer is left as he began, namely, that he has to show negligence. I need scarcely add that the suggestion of how the accident may have occurred must be a reasonable suggestion' ". [F7]
Lord Wright thought that Lord Dunedin's statement stated the same rule as that stated by Lords Loreburn and Halsbury. Joseph Travers & Sons v Cooper [F8] was a case in which a carrier's servant had been negligent in leaving a barge unattended. It sank, for what reason was not certain. It was held by the majority of the Court of Appeal that in those circumstances it was for the carrier to prove that his negligence had not caused the loss. See per Phillimore L.J. [F9] . Buckley L.J. pointed out that the unreported case in the House of Lords from which the quotations were made was a case in which the bailee had been negligent and, in that event, proof that the loss had not been caused thereby rested upon him [F10] .
In using the statements made by Lord Wright and those quoted by him in relation to an action for breach of a promise to carry with due care where there has been no bailment of the goods it must be remembered that this Court has differed from the trend of decision in England by which it is considered that the giving of prima facie evidence may operate to shift the onus of proof. See Mummery v Irvings Pty Ltd [F11] and Anchor Products Ltd v Hedges [F12] as well as the other cases in this Court to which I have already referred. As a result of those cases, the accepted explanation of the non-delivery, in my opinion, removes the basis of the inference which could otherwise be drawn from its occurrence. It would of course be different if that explanation itself exposed a want of care on the part of the defendant. cf. Nominal Defendant v Haslbauer [F13] .
Here the defendant established the precise cause of the failure to deliver and that that cause of non-delivery, namely, the unexpected fracture of the axle of the bogie of the trailer, was not itself due to any act of the defendant or of his sub-contractor. It thus, in my opinion, destroyed the basis of any inference of the lack of due care drawn only from the fact of non-delivery. Further it was established that the vehicle was suitable for its task, it was not overloaded, it was not improperly driven, either in point of speed or otherwise: it was in first class condition. The fracture of the axle was new and not the result of wear. It was a total failure of that axle, immediate and without warning.
In my opinion, upon the evidence of the condition of the truck and the manner of the accident being given, and accepted by the trial judge, it remained for the plaintiff to establish a want of reasonable care on the part of the defendant for the safety of the goods in the course of their carriage that being the basis of the plaintiff's claim. The onus did not pass to the defendant because the non-delivery of the goods afforded prima facie evidence of a breach of a promise to use due care for the goods.
However, even assuming that the consequence of non-delivery was that the defendant (presumably because regarded as a bailee) became liable to prove that it could not have avoided the fracture of the axle by reasonable inspection and maintenance of the vehicle it did, in my opinion, satisfy that onus. There was no evidence that any warning sign of an impending fracture of the axle of the kind which did occur could have been seen upon an examination of the vehicle in the course of its reasonable maintenance or for that matter at all. There was no evidence that such a fracture was preceded by a hair line crack. The evidence to which I have referred pointed the other way. All that was said in evidence was that if a hair line crack were seen, the vehicle would not be driven. In my opinion, the trial judge wrongly assumed without evidence that such warning signs would exist and would be discoverable by a reasonable system of maintenance and inspection supposing (which I cannot think could be supposed) that in such a system the axles would be cleaned of all grease so as to expose the metal of which they were formed. On these matters I respectfully agree with the reasons for judgment given by Sugerman P. in the Supreme Court.
The defendant did prove that the vehicle was regularly inspected and serviced. The driver, expert and experienced in the field, said that the vehicle was in A1 condition. In my opinion, even on the assumption that because of the non-delivery of the goods the defendant carried the onus of establishing that reasonable care had been taken of the goods, the trial judge was in error in not being satisfied in the circumstances that the defendant had taken reasonable care for the safety of the goods.
The appeal should be allowed, the verdicts of the trial judge set aside, a verdict entered for the defendant in the plaintiff's action and for the third party in the defendant's claim and a direction given that judgments be entered accordingly.