Clements & Marshall Pty Ltd v Roomes - [1989] TASSC 90

Serial No. B12/1989
List “B”

COURT: SUPREME COURT OF TASMANIA

CITATION: Clements & Marshall Pty Ltd v Roomes [1989] TASSC 90; B12/1989

PARTIES:  CLEMENTS & MARSHALL PTY LTD
  v
  ROOMES

FILE NO/S:  191/1986
DELIVERED ON:  2 May 1989
JUDGMENT OF:  Crawford J

Judgment Number: B12/1989
Number of paragraphs: 29

Serial No B12/1989
File No 191/1986

CLEMENTS & MARSHALL PTY LTD v ROOMES

REASONS FOR JUDGMENT CRAWFORD J

12 May 1989

The plaintiff has sued the defendants, S V & E Roomes trading as Roomes Transport, for agreed damages amounting to $13, 384. 54. The action has been brought in contract and in tort. It arises out of the carriage by the transport business operated by the defendants of the plaintiff's cartons of apples in a container, which was on a semi trailer behind a prime mover driven by the defendants' employee, Robert Gordon, on the Huon Highway from Huonville to Hobart. Two accidents happened involving the semi trailer and prime mover on a corner referred to in evidence as Kyalami Corner, which is about two kilometres north of Grove .

The evidence established that in the morning of 6 September 1985, Mr Gordon was driving the prime mover up an incline and around a very tight corner to his right, which was almost a U–bend. There was an upward bank on Mr Gordon's left, at the edge of the highway and a drop on Mr Gordon's right, at the other edge of the highway. Mr Gordon allowed the prime mover to be too close to the left edge of the highway. The trailer, still bearing the container, tipped over to the left, onto its side so that it was lying against the bank on the side of the highway. Senior Constable Smith attended at the scene of the accident. He observed that the container was still attached to the trailer by means of bolts. The prime mover had torn free of the trailer and was about twenty metres or so away. The trailer and container did not appear to be damaged, but the turntable on the prime mover had been damaged. The police officer described the damage as involving the turntable being tilted up and it appeared to him that anchor bolts around the chassis had given way The cartons of apples were inside the sealed container and it is impossible to say whether they were damaged in that first accident.

Two excavators were brought to the scene. They lifted the trailer, bearing the container, back onto its wheels. An excavator bucket was used to push the turntable flat. The trailer was reconnected to the prime mover, but because of the damage the connection could not be locked. With the assistance of the excavators, the prime mover and trailer were reversed off the highway into a side road, a distance of only twenty metres or so away. Senior Constable Smith told Mr Gordon that he should not drive the prime mover away with the trailer behind, because of the damage…

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 Clements & Marshall Pty Ltd v Roomes

Details

AGLC: Clements & Marshall Pty Ltd v Roomes [1989] TASSC 90
Case: [1989] TASSC 90
Decision Date: 2 May 1989

CaseChat Overview and Summary

The case of Clements & Marshall Pty Ltd v Roomes involved a claim for damages brought by the plaintiff against the defendants, S V & E Roomes trading as Roomes Transport. The claim arose from the carriage of the plaintiff's cartons of apples, which were transported in a container on a semi-trailer behind a prime mover driven by the defendants' employee, Robert Gordon. The transport occurred on the Huon Highway from Huonville to Hobart. Two accidents happened involving the semi-trailer and prime mover at a corner referred to as Kyalami Corner, approximately two kilometres north of Grove. The plaintiff sought agreed damages of $13,384.54 in contract and tort.

The legal issues before the court were whether the defendants could be held liable for the damages under the contract and in tort, and if certain defences raised by the defendants could succeed. The defences included an alleged term of the contract that the plaintiff would assume the risk of injury or damage to its property while being carried by the defendants and that the plaintiff would not seek reimbursement from the defendants for any damage caused. The defendants also argued that the plaintiff was estopped from claiming the present loss due to its conduct over at least ten years of dealing, where it carried the risk of such losses and did not seek to recover them from the defendants.

Crawford J determined that the evidence did not support the existence of an agreed term that the plaintiff would assume the risk of damage or injury to its property. There was no evidence that such a term was expressly or impliedly agreed upon by the parties. The court also found that the defence of estoppel did not succeed as the evidence did not establish that the defendants understood their common law liability or that the plaintiff intended or knew that the defendants would not insure against their common law liability due to the plaintiff’s failure to make claims for damage on previous occasions. The court held that the defendants were liable to the plaintiff for the damages caused by the negligence of their employee, Robert Gordon, both in contract and in tort.

The final orders of the court were that there would be judgment for the plaintiff against the defendants for $13,384.54 in damages.

Orders