NEW SOUTH WALES COURT OF APPEAL
CITATION:
ERWIN v IVECO TRUCKS AUSTRALIA LTD [2010] NSWCA 113
This decision has been amended. Please see the end of the judgment for a list of the amendments.
FILE NUMBER(S):
2009/40163
HEARING DATE(S):
23 March 2010
JUDGMENT DATE:
18 May 2010
PARTIES:
Alan John Erwin (Appellant)
Iveco Trucks Australia Limited ACN 004 065 061 (Respondent)
JUDGMENT OF:
Basten JA Campbell JA Sackville AJA
LOWER COURT JURISDICTION:
Supreme Court
LOWER COURT FILE NUMBER(S):
SC 2006/20238
LOWER COURT JUDICIAL OFFICER:
Harrison J
LOWER COURT DATE OF DECISION:
5 March 2009
LOWER COURT MEDIUM NEUTRAL CITATION:
[<i>Middleton v Erwin</i>] [2009] NSWSC 108
COUNSEL:
R R Bartlett SC; J Gooley (Appellant)
R A Cavanagh; A Bowen (Respondent)
SOLICITORS:
TL Lawyers (Appellant)
Moray & Agnew Lawyers (Respondent)
CATCHWORDS:
NEGLIGENCE—collision between car driven by plaintiff and semi-trailer driven by appellant—semi-trailer manufactured by respondent 13 years earlier—collision caused by failure of semi-trailer's steering mechanism—appellant found liable to plaintiff by reason of negligent failure to maintain the steering mechanism—appellant cross-claims for contribution from respondent on ground that the steering pinch bolt mechanism had a faulty design—whether evidence showed design conformed to industry norm—whether breach of duty established because respondent did not incorporate fail-safe mechanism in design—whether risk of failure was insignificant—whether a reasonable manufacturer would have incorporated additional safety features
TRADE PRACTICES—appellant cross-claims on ground that semi-trailer when manufactured had a defect within the meaning of s75AE(1) of the [<i>Trade Practices Act 1974</i>] (Cth)—whether s75AE(1) is intended to create a right of indemnity in a party whose negligence caused injuries to an individual against a manufacturer whose defective goods have also caused the same injuries—whether semi-trailer had a defect
LEGISLATION CITED:
[<i>Trade Practices Act 1974</i>] (Cth), ss 52, 75AC, 75AD, 75AE, 75AI, 75AK, 75AN, 75AO, 75AR, 82; Pt VA
[<i>Trade Practices Amendment Act 1992</i>] (Cth)
[<i>Civil Liability Act 2002</i>] (NSW), ss 5B, 5C
[<i>Law Reform (Miscellaneous Provisions) Act 1946</i>] (NSW), s 5
[<i>Supreme Court Act 1970</i>] (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), rr 14.7, 14.14
CATEGORY:
Principal judgment
CASES CITED:
[<i>Bialkower v Acohs Pty Ltd</i>] [1999] FCA 446; 83 FCR 1
[<i>Certain Lloyds Underwriters v Giannopoulos</i>] [2009] NSWCA 56
[<i>Cheong v Wong</i>] [2001] NSWSC 881; 34 MVR 359
[<i>Council of the Shire of Muswellbrook v Lettice</i>] [2000] NSWCA 359
[<i>Dovuro Pty Ltd v Wilkins</i>] [2003] HCA 51; 215 CLR 317
[<i>Fox v Percy</i>] [2003] HCA 22; 214 CLR 118
[<i>Friend v Brooker</i>] [2009] HCA 21; 239 CLR 129
[<i>Gett v Tabet</i>] [2009] NSWCA 71; 254 ALR 504
[<i>Lanza v Codemo</i>] [2001] NSWSC 72
[<i>McDonald v Girkaid Pty Ltd</i>] [2004] NSWCA 297
[<i>Mercer v Commissioner for Road Transport and Tramways (NSW)</i>] [1936] HCA 71; 56 CLR 580
[<i>New South Wales v Fahy</i>] [2007] HCA 20; 232 CLR 486
[<i>Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd</i>] [2009] NSWCA 263; 168 LGERA 351
[<i>Roads and Traffic Authority of New South Wales v Dederer</i>] [2007]…
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- AGLC
- Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113
- Case
- [2010] NSWCA 113
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the respondent, as the manufacturer, had breached its duty of care to the appellant by designing the steering mechanism with a pinch bolt system rather than an alternative welded design, and whether this design constituted a defect under the *Trade Practices Act 1974*. Specifically, the court had to consider whether the design conformed to industry norms, whether the risk of failure was insignificant, and if a reasonable manufacturer would have incorporated additional safety features, such as a fail-safe mechanism. The court also had to assess whether the Act intended to create a right of indemnity for a negligent party against a manufacturer whose defective goods contributed to the same injury.
The court dismissed the appeal, upholding the primary judge's findings. The reasoning was that the respondent had complied with the industry norm by using the pinch bolt system, which was standard practice for universal joints in steering mechanisms at the time of manufacture. While a welded alternative existed that could have entirely obviated the risk of failure, the fact that a risk could have been avoided by a different method did not automatically establish liability. The failure occurred after the vehicle had travelled a significant distance and due to inadequate maintenance, including improper tightening of the pinch bolt and neglect of grub screws. The court found that the respondent was entitled to expect that the vehicle would be maintained appropriately, and that the failure was not a result of a design flaw but rather a consequence of the vehicle's subsequent use and maintenance. The court also noted that there was no evidence that the respondent was aware of prior incidents suggesting a propensity for such failures.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
(1) Appeal dismissed.
(2) The appellant pay the respondent’s costs of the appeal
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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