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Double whammy: collision gives rise to criminal and civil proceedings

13 May 2019

#Transport, Shipping & Logistics

Published by Rebecca Niumeitolu

 Double whammy: collision gives rise to criminal and civil proceedings

On 28 June 2012 there was a collision between a freightliner and several other vehicles at the intersection of the Cumberland Highways and Hume Highways in New South Wales.

The collision arose when the driver carrying a load of wood composite products navigated the turn at the intersection at an excessive speed. This caused its load, which was inadequately secured, to shift and destabilise the vehicle. The vehicle rolled onto its right-hand side, crushing a nearby vehicle and causing a collision with other vehicles. The occupant of one vehicle died and occupants of another suffered injury. 

If the facts of this case ring a bell it’s because they gave rise to the conviction of the consignor of the products, Futurewood, and its directors in 2015 for breaching load restraint requirements under the Road Transport (General) Act 2005. Futurewood was fined $27,500. 

Now, it comes before us as a result of claims made by or on behalf of the road users who suffered injury or death in the collision (Road Users) due to the negligence of several CoR parties, namely the: 

  • driver
  • owner of the prime mover substituted by its compulsory third party insurer (owner)
  • consignor. 

The driver and consignor also brought cross-claims against QBE Insurance (Australia) Limited (QBE) as the insurer of the driver’s employer and owner of the trailer (employer). 

Due to the complexity of issues arising in this case and the insight it offers into the steps that each CoR parties should have taken to avoid risks to the safety of their transport activities and their ultimate liability, this claim of negligence is relevant to your own CoR practices. 

The claim 

The Road Users made a claim for compensation under the Civil Liability Act 2002 (CLA). This was not a criminal prosecution under the HVNL. 

Generally speaking the CLA allows for a person to make a claim against another person where they acted negligently – i.e. where each CoR party owed a duty of care to the Road Users, breached their respective duties and as a result caused damage to the Road Users. The CLA also provides for liability to be apportioned where there are multiple wrongdoers that contributed to damage suffered. 

In this case, the Court held that there were several causes of the accident arising from the negligence of multiple wrongdoers (being the CoR parties) including: 

  • the driver was driving the freightliner at an excessive speed for the load as he navigated the corner
  • the load had been inadequately secured within the container by the foreign exporter
  • the container was overweight
  • each CoR party failed to make reasonable enquiries that could have avoided the foreseeable risk of the rollover and the damage suffered:
  1. the driver should have made inquiries about the weight of the container and whether the load was secured
  2. the consignor should have made the foreign exporter aware of the load restraint requirements applying to the consigned goods or otherwise ensured that they were met
  3. the employer should have contacted the consignor to find out how the load was restrained, where it was aware that the consigner had not properly restrained goods in the past. 

The Court apportioned fault against the CoR parties as follows:

  • driver and Owner: 70%
  • consignor: 20%
  • employer: 10%.

Why is a negligence case relevant to your CoR practices? 

  • obligations under CLA and HVNL operate simultaneously – CoR parties should be aware that if an accident arises as a result of driving at an excessive speed, driving with an unsecured load and/or in breach of mass requirements, these factual circumstances could result in criminal prosecution and claims under CLA. This means that their potential liability does not just stop at potential penalties and compensation orders under the HVNL but also payment of civil damages related to injuries suffered by third parties. 
  • claims under the CLA can take account of industry standards so your compliance with the HVNL could avoid or limit your liability under the CLA – A claim under the CLA can take account of what a reasonable person would have done if they were in the position of each of the alleged wrongdoers. In this case, references to industry standards and practices for loading shipping containers, securing loads and making reasonable inquiries informed what a reasonable person would or should have done if they were in the position of each of the CoR parties in response to their transport risks. Had the CoR parties made the reasonable inquiries identified by the Court, they would have been aware of the mass and restraint breaches and would not have transported the goods as they were. They would have repacked the load with appropriate restraints or delivered the goods separately. It is likely that this would have avoided the accident. If a collision did by chance occur, then it would be more difficult to establish that the CoR parties acted negligently where safety risks were properly accounted for in accordance with the primary duty.
  • the multiple causes of the collision provide an opportunity to assess each party’s obligations across the CoR. 

Author: Rebecca Niumeitolu

* A version of this article was originally published in CoR Adviser. This article is © 2019 Portner Press Pty Ltd and has been reproduced with permission of Portner Press.

Contacts:

Sydney
Nathan Cecil, Partner 
T: +61 2 8083 0429 
Enathan.cecil@holdingredlich.com

Geoff Farnsworth, Partner 
T: +61 2 8083 0416 
Egeoff.farnsworth@holdingredlich.com

Melbourne
Harry Kingsley, Partner
T: +61 3 9321 9888 
Eharry.kingsley@holdingredlich.com

Brisbane
Suzy Cairney, Partner 
T: +61 7 3135 0684 
Esuzy.cairney@holdingredlich.com

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by Rebecca Niumeitolu

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