In this alert, Senior Associate Scott Macoun and Solicitor Abbey Wilkinson discuss a recent appeal in which an employer was saved from an adverse finding on liability in a truck crash, due to the worker’s excessive driving speed, and his lawyers’ brief pleadings.
- Even if there has been a failure on the part of the employer, such as not loading a trailer correctly; unless that failure was the cause of the accident the employer will not be liable.
The claimant in this case, BlueScope Steel Ltd v Cartwright  NSWCA 25, was a truck driver who was employed by Mannway (employer). The incident occurred when the claimant was transporting coils on behalf of BlueScope Steel Ltd (Bluescope). The claimant was driving on the Princess Highway and, during a left hand turn, the trailer capsized to the right and caused the truck to crash. The claimant suffered serious injuries as a result of the crash.
Bluescope produced and provided to the employer guidelines for the secure loading of the coils for transportation. However, shortly before the claimant’s accident, Bluescope changed how the coils were manufactured and packaged (an additional timber runner was now placed underneath the coils) without informing the employer.
The method of loading the coils was not altered to allow for the change which resulted in the coils not being as stable in the trailer during transport as they had previously been. The method of loading required the use of wedges under the coils which, after the addition of the timber runner, no longer touched the coils.
The claimant was awarded $926,000.00 by the primary judge, with judgement against Bluescope and the employer. That decision was appealed by Bluescope, with cross-appeals made by the claimant and the employer’s insurer.
The decision of the primary judge was appealed for the following reasons:
- The primary judge failed to make a finding about the speed that the claimant was travelling at the time of the accident; and
- The primary judge failed to accept the evidence of the parties’ expert engineers: that even if the load was not loaded in a stable manner due to wedges not making contact with the coils, the load still would not have shifted and fallen within the trailer if the truck was travelling below 75km per hour. The claimant had given evidence that he was travelling at 55km per hour.
The New South Wales Court of Appeal held that:
- The accident was caused by the claimant travelling at an excessive speed;
- Bluescope was not in breach of the duty of care that it owed the claimant because, although it did not tell the employer about the change to the coils, the guidelines that they had provided to the employer made it clear that the wedges used in the loading process were meant to make physical contact with the coils. The court found that the employer should have adapted its loading process to take into account the change to the coils and to make sure the wedges still came into contact with the coils. This issue did not have a material impact on the claim because the court found that it was the excessive speed that caused the accident, not the issues with the loading of the truck; and
- The claimant was entirely responsible for his injuries.
As the claimant’s claim against the employer was based on the employer’s failure in relation to the packing of the coils, and the Court of Appeal found that this failure did not cause the incident, the claimant’s case against the employer failed. The Court of Appeal indicated that a broader claim against the employer may have been successful, such as a claim based on failure to provide adequate training in relation to driving trucks around corners at an appropriate speed.