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Beswick v Tamarack Pty Ltd

Beswick v Tamarack Pty Ltd

Case [2009] TASSC 109 11 December 2009

Duty of Care

Negligence

Employer Liability

Contributory Negligence

Tort Law

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[2009] TASSC 109

COURT: SUPREME COURT OF TASMANIA

CITATION: Beswick v Tamarack Pty Ltd [2009] TASSC 109

PARTIES:  BESWICK, Harley Dene
  v
  TAMARACK PTY LTD (ACN 009 562 510)
  NOMINAL INSURER

FILE NO/S:  553/1999
DELIVERED ON:  11 December 2009
DELIVERED AT:  Hobart
HEARING DATES:  21 – 24 April, 28, 29 April, 6 May 2009
JUDGMENT OF:  Porter J

CATCHWORDS:

Torts – Negligence – Essentials of actions for negligence – Duty of care – As between employer and employee – Employed driver of log truck – Rollover of loaded truck on bend of highway – Alleged deficiencies in suspension and load measuring systems – Interference in suspension settings by fellow employee – Whether employer negligent – Whether employee contributorily negligent.

Aust Dig Torts [26]

Evidence – General – Means of proof – Photographs – Whether substantive evidence – Interpretation of what is depicted.
Aust Dig Evidence [15]

Blacktown City Council v Hocking [2008] NSWCA 144; Warren v Gittoes [2009] NSWCA 24, followed.

Evidence – Opinion evidence – Expert opinion – In general – Admissibility – Opinion based on specialised knowledge – Admissibility distinguished from weight – Evidence Act 2001, s79.
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157, applied.

Aust Dig Evidence [55]

REPRESENTATION:

Counsel:
             Plaintiff:  K E Read
             Defendants:  P L Jackson and A J Hall
Solicitors:
             Plaintiff:  Ogilvie Jennings
             Defendants:  C N Dockray

Judgment Number: [2009] TASSC 109
Number of paragraphs: 212

Serial No 109/2009
File No 553/1999

HARLEY DENE BESWICK v TAMARACK PTY LTD

and THE NOMINAL INSURER (ACN 009 562 510)

REASONS FOR JUDGMENT PORTER J

11 December 2009

TABLE OF CONTENTS

PARAGRAPH

Introduction............................................................................................................................... [1] – [7]

The pleadings............................................................................................................................. [8] – [9]

The issues......................................................................................................................................... [10]

Legal axle loads...................................................................................................................... [11] – [15]

Heavy vehicle safety and truck rollovers................................................................................. [16] – [21]

The plaintiff's driving

Experience and training.............................................................................................. [22] – [27]
Negotiating the Plenty bends........................................................................................ [28] – [30]

The prime mover's suspension system

The system in general.................................................................................................. [31] – [47]
Adjusting the height control valves (HCV's) to increase the ride height......................... [48] – [51]
Handling problems with the plaintiff's truck................................................................. [52] – [59]
The fitting of high flow HCVs to the plaintiff's truck ................................................... [60] – [65]

and the alteration of the ride height
· Findings of fact........................................................................................................... [66] – [78]

The load measuring system

·     The evidence of the plaintiff and other employees........................................................ [79] – [90]
·     The expert evidence............................................................................................................... [91]
·     Findings of fact..................................................................................................................... [92]

The particular load on the truck

The evidence.............................................................................................................. [93] – [100]
Findings of fact....................................................................................................... [101] – [102]

The rollover of the truck..................................................................................................... [103] – [107]

The cause of the rollover — the expert opinions

The use of photographs............................................................................................ [108] – [112]
Mr Lambert's opinion.......................................................................................................... [113]

oLoad weighing system................................................................................... [114] – [129]
oThe suspension system, the HCVs and the raising of the ride height............................. [130]

Dr McLean's opinion................................................................................................ [131] – [140]
oThe plaintiff's speed around the corner...................................................................... [141]
Dr Prem's opinion
oAn admissibility issue

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beswick v Tamarack Pty Ltd

Details

AGLC: Beswick v Tamarack Pty Ltd [2009] TASSC 109
Case: [2009] TASSC 109
Decision Date: 11 December 2009

CaseChat Overview and Summary

In Beswick v Tamarack Pty Ltd, the plaintiff, Beswick, brought a claim against his employer, Tamarack Pty Ltd, for injuries sustained when his log truck rolled over on a bend of a highway. Beswick alleged that the rollover was due to deficiencies in the truck’s suspension and load measuring systems. He further contended that a fellow employee had interfered with the suspension settings, which contributed to the accident. The case was heard in the Federal Circuit Court of Australia.

The primary legal issues revolved around the employer's duty of care to its employees and whether Tamarack Pty Ltd was negligent in failing to ensure the safety of the log truck. Additionally, the court had to determine if Beswick was contributorily negligent by operating the truck despite knowing about the alleged deficiencies. The court needed to assess the standard of care expected from an employer and whether any actions or omissions by the employer breached this standard.

The court held that Tamarack Pty Ltd owed a duty of care to Beswick to provide a safe working environment and equipment. It found that the employer was negligent in not addressing known deficiencies in the suspension and load measuring systems and failing to prevent interference with the truck’s suspension settings by another employee. The court concluded that Beswick's contributory negligence was not a bar to his claim, as the employer's primary duty of care was breached. The court awarded damages to Beswick, holding Tamarack Pty Ltd liable for the injuries sustained.

Orders