[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…
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CaseChat Overview and Summary
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
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Background
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Evidence
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Decision
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Ratio Decidendi
Legal Principle Established
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