Tamarack Pty Ltd v Beswick, Harley Dene

• Jurisdiction: Tasmania
• Judge: Evans J,Blow J,Tennent J
• Judgment Date: 18 June 2010
• Court: Full Supreme Court
• Date: 18 June 2010
• Docket Number: 1088/2009

[2010] TASFC 5

[2009] TASSC 109

SUPREME COURT OF TASMANIA (FULL COURT)

Evans, Blow and Tennent JJ

1088/2009

Tamarack Pty Ltd

and

Beswick, Harley Dene

REPRESENTATION:

Counsel:

Appellant: P L Jackson

Respondent: K E Read

Norris v McGeachy[2010] TASFC 4, followed.

Aust Dig Appeal and New Trial [33].

Supreme Court Civil Procedure Act 1932 (Tas), s45(1).

Appeal and New Trial — Appeal — General principles — Interference with discretion of court below — In general — General principles — Functions of appellate court — Generally — Exercise of broad judicial discretion — Where no error of principle — Reduction of damages for contributory negligence.

Order of the Court

Appeal dismissed.

REASONS FOR JUDGMENT

FULL COURT

Evans J

1 I agree with Blow J's reasons for judgment and would also dismiss the appeal.

Blow J

2 This appeal relates to a log truck accident that occurred in September 1996. It was a single vehicle accident. The log truck was being driven by the respondent, Mr Beswick, in the course of his employment by the appellant, Tamarack Pty Ltd. He was driving a load of logs from Tarraleah to the paper mill at Boyer. The accident occurred on one of a series of bends at Plenty. The respondent had been driving log trucks through those bends for at least nine years. On this occasion he found himself unable to take one of those bends, ran off the road, and was injured. He sued his employer for damages for negligence. Amongst other things, he alleged that a fellow employee had been negligent in adjusting the truck's suspension system, that there had been negligence in the way the truck was loaded, and that his training had been inadequate. The action went to trial. The quantum of damages was agreed. The learned trial judge found that the employer was liable in negligence, but that there was contributory negligence on the part of the respondent. He reduced the respondent's damages by 20 per cent because of his contributory negligence. The employer has appealed. It contends that one of several findings of negligence should not have been made, and that the reduction for contributory negligence should have been significantly greater than 20 per cent.

The findings of negligence

3 The learned trial judge made a finding that an employee of the appellant named Pearton elevated the suspension ride height of the truck on the day of the accident, before the respondent commenced his shift, in an attempt to improve the truck's handling; and that the increased ride height would have caused a corresponding increase in the height of the centre of gravity and a greater degree of instability, and given the driver false feedback concerning the stability of the vehicle. His Honour concluded that, in making the adjustments to the suspension, Mr Pearton failed to exercise reasonable care in relation to foreseeable injury to the driver, and also that the appellant was vicariously liable for Mr Pearton's actions. Those conclusions are not challenged.

4 The rig driven by the respondent consisted of a prime mover and a single trailer ‘log jinker’. The trailer had four vertical steel posts along each side. They are known as bolsters. The sections created by the two sets of forward bolsters and the two sets of rear bolsters are known as bunks. The unchallenged evidence as to the loading operation was as follows. An employee of the appellant named Gill loaded the truck, using a log loader. While he did that, the respondent remained in the truck, monitoring an air pressure gauge. The front bunk was loaded first. The respondent had radio contact with Mr Gill. The respondent's instructions were to load the front bunk until the air pressure gauge reached 60 kilopascals (kpa). The learned trial judge made findings that Mr Gill stopped loading the front bunk because he considered that there was already too much on it; that he said words to that effect to the respondent; that the gauge was reading less than 50kpa at that stage; that more logs were loaded onto the front bunk; that the front bunk bore an uneven share of the load; and that the drive axles of the truck were therefore overloaded. He also made findings that the extra loading was somewhere in the order of two to four tonnes, and that the excessive load created an overall higher centre of gravity of the load. He made findings that the loading system on the respondent's truck was likely to lead to overloading on the front bunk; that the risk of a rollover crash was therefore materially heightened; that the respondent's truck was the only one in a fleet of about 18 that was not fitted with a better loading system, the Lodec system; and that, by having in place the system that required the front bunk to be loaded until the reading was 60kpa, the appellant breached its duty to take reasonable care not to expose the respondent to a risk of foreseeable injury. That conclusion is not challenged in these proceedings, but the appellant contends that its negligence in this respect did not materially contribute to the accident.

5 At the trial, it was argued that the respondent's speed immediately before the crash was attributable to the appellant having failed to train or instruct him having regard to the truck's actual or potential characteristics. The learned trial judge observed that no response was made to that part of the respondent's case. After reviewing the evidence as to the extent of the appellant's knowledge as to the respondent's speed and manner of driving and the handling of the truck, his Honour concluded that the appellant breached its duty by failing to take reasonable care to give training or instruction so as to obviate or minimise the risk of injury caused by a driver travelling at an excessive speed. The appellant contends that that conclusion was wrong.

6 His Honour found that all of these breaches of duty caused, or materially contributed to, the respondent's injury. That is to say, he found the appellant liable on the basis of Mr Pearton having raised the suspension ride height, on the basis of its failure to have had in place a load measuring system which did not create a risk of injury by causing overloading of the front bunk, and on the basis of its failure to provide proper driver training.

Contributory negligence

7 The learned trial judge found that there was contributory negligence on the respondent's part in two respects — in failing to have his load adjusted before he set off on his journey, and in travelling at an excessive speed through the bend. He referred to evidence given by the respondent that he customarily drove at speeds well in excess of the speed appearing on an advisory speed sign at the commencement of a series of bends that included the bend in question. Although referred to in the evidence as bend 6 it was the fifth bend into the series. He commented that that practice was ‘one fraught with danger’. He referred to evidence that another driver regularly drove through the corners at Plenty at some 10Km/h or so less than the respondent regularly did, and commented that there appeared to have been no reason why the respondent could not have adopted that practice. He referred to evidence from the respondent that he was under no time pressures. He referred to evidence that the respondent was aware that there was something particularly unusual about the load; that the truck had a history of handling problems; and that the truck was behaving in a ‘foreign manner’ on the night of the accident. He commented that its handling behaviour ought to have put the respondent on notice that care might be required, even though the change was seemingly for the better. He referred to the respondent's evidence that he had noticed an increased gap between the drive wheels and the mudguard. That increased gap was the result of Mr Pearton's adjustment.

8 In reaching the conclusion that a reduction of 20 per cent was appropriate, the learned trial judge said this:

‘Of significance in this exercise is that the defendant provided the plaintiff with a truck fitted with a load measuring system which effectively involved 'guesswork'. At the same time, it provided erroneous advice as to the pressure which would represent the appropriate load on the drive axles, and instructed him to attempt to achieve the maximum legal load with tolerances. Of particular significance is that I have found that the plaintiff's speed was at least, contributed to by the defendant's negligence in failing to instruct or warn him against that practice in particular circumstances. Those circumstances existed in relation to the load on the night. In my view, it is just as between the parties, that the plaintiff bear responsibility for his injuries to the extent of 20 per cent.’

Ground 1 — Dr Prem's evidence

9 There are five grounds of appeal. Ground 1 relates to the evidence of an engineer, Dr Prem, who was called as an expert witness for the appellant. This ground involves assertions that the learned trial judge made errors in relation to three aspects of Dr Prem's evidence. Counsel for the respondent conceded that his Honour did make errors as asserted in relation to two aspects of Dr Prem's evidence, but submitted that those errors were inconsequential. He did not concede that any error had been made as to the third relevant aspect of Dr Prem's evidence.

Lateral acceleration

10 When a vehicle travels in a circle or around a bend, centrifugal force will tend to push it outwards. The magnitude of the centrifugal force is proportionate to the lateral acceleration, ie sideways acceleration, of the vehicle. If the lateral acceleration of a vehicle exceeds a certain figure, the vehicle will roll over, towards the outside of the circle or bend. The rate of lateral acceleration which, when reached, will result in a vehicle beginning to roll over is known as the static rollover threshold (‘SRT’). The SRT of a particular log truck depends, amongst other...