13 May 2019
Published by Rebecca Niumeitolu
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:
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 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 Court apportioned fault against the CoR parties as follows:
Why is a negligence case relevant to your CoR practices?
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.
Nathan Cecil, Partner
T: +61 2 8083 0429
Geoff Farnsworth, Partner
T: +61 2 8083 0416
Harry Kingsley, Partner
T: +61 3 9321 9888
Suzy Cairney, Partner
T: +61 7 3135 0684
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