Tamarack Pty Ltd v Beswick - [2010] TASFC 5

[2010] TASFC 5

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Tamarack Pty Ltd v Beswick [2010] TASFC 5

PARTIES:  TAMARACK PTY LTD
  v
  BESWICK, Harley Dene

FILE NO/S: 1088/2009
JUDGMENT

APPEALED FROM: Beswick v Tamarack Pty Ltd [2009] TASSC 109

DELIVERED ON:  18 June 2010
DELIVERED AT:  Hobart
HEARING DATE:  3 June 2010
JUDGMENT OF:  Evans, Blow and Tennent JJ

CATCHWORDS:

Appeal and New Trial – Appeal – General principles – Interference with discretion of court below – In general – General principles – Functions of appellate court – Generally – Exercise of broad judicial discretion – Where no error of principle – Reduction of damages for contributory negligence.

Supreme Court Civil Procedure Act 1932 (Tas), s45(1).
Norris v McGeachy [2010] TASFC 4, followed.
Aust Dig Appeal and New Trial [33].

REPRESENTATION:

Counsel:
             Appellant:  P L Jackson
             Respondent:  K E Read
Solicitors:
             Appellant:  C N Dockray
             Respondent:  Ogilvie Jennings

Judgment Number: [2010] TASFC 5
Number of paragraphs: 59

Serial No 5/2010
File No 1088/2009

TAMARACK PTY LTD v HARLEY DENE BESWICK

REASONS FOR JUDGMENT FULL COURT

EVANS J
BLOW J
TENNENT J
18 June 2010

Order of the Court

Appeal dismissed.

Serial No 5/2010
File No 1088/2009

TAMARACK PTY LTD v HARLEY DENE BESWICK

REASONS FOR JUDGMENT FULL COURT

EVANS J
18 June 2010

I agree with Blow J's reasons for judgment and would also dismiss the appeal.
File No 1088/2009

TAMARACK PTY LTD v HARLEY DENE BESWICK

REASONS FOR JUDGMENT FULL COURT

BLOW J
18 June 2010

This appeal relates to a log truck accident that occurred in September 1996. It was a single vehicle accident. The log truck was being driven by the respondent, Mr Beswick, in the course of his employment by the appellant, Tamarack Pty Ltd. He was driving a load of logs from Tarraleah to the paper mill at Boyer. The accident occurred on one of a series of bends at Plenty. The respondent had been driving log trucks through those bends for at least nine years. On this occasion he found himself unable to take one of those bends, ran off the road, and was injured. He sued his employer for damages for negligence. Amongst other things, he alleged that a fellow employee had been negligent in adjusting the truck's suspension system, that there had been negligence in the way the truck was loaded, and that his training had been inadequate. The action went to trial. The quantum of damages was agreed. The learned trial judge found that the employer was liable in negligence, but that there was contributory negligence on the part of the respondent. He reduced the respondent's damages by 20 per cent because of his contributory negligence. The employer has appealed. It contends that one of several findings of negligence should not have been made, and that the reduction for contributory negligence should have been significantly greater than 20 per cent.

The findings of negligence

The learned trial judge made a finding that an employee of the appellant named…

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 Tamarack Pty Ltd v Beswick

Details

AGLC: Tamarack Pty Ltd v Beswick [2010] TASFC 5
Case: [2010] TASFC 5
Decision Date: 18 June 2010

CaseChat Overview and Summary

Tamarack Pty Ltd appealed to the Full Court of the Supreme Court of Tasmania against a judgment of a single judge awarding damages to the respondent, Mr. Beswick, for personal injuries sustained in a motor vehicle accident. The primary dispute concerned the extent to which damages should be reduced due to Mr. Beswick's contributory negligence.

The central legal issue before the Full Court was whether the primary judge had erred in exercising their discretion by failing to reduce the awarded damages by a sufficient amount to account for Mr. Beswick's contributory negligence. The appeal argued that the reduction applied was manifestly inadequate, constituting an error of principle or a misapplication of discretion.

The Full Court considered the principles governing appellate intervention in the exercise of a judge's discretion, particularly in relation to the assessment of damages and the apportionment of blame for contributory negligence. The Court affirmed that an appellate court should not interfere with a discretionary judgment unless there is a demonstrable error of principle, a misstatement of the law, or the decision is so unreasonable that no judge, acting judicially, could have reached it. Applying these principles, the Court found that the primary judge had properly considered all relevant factors in assessing contributory negligence and that the reduction of damages, while perhaps arguable, did not reach the threshold for appellate interference.

The appeal was dismissed.

Orders