Tarres v Rozelle Carriers Pty Ltd - [2011] NSWSC 1410

Supreme Court

New South Wales

Medium Neutral Citation: Tarres v Rozelle Carriers Pty Ltd [2011] NSWSC 1410
Hearing dates: 14/03/2011, 15/03/2011, 16/03/2011, 17/03/2011,18/03/2011
Decision date: 25 November 2011
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Judgment for plaintiff in a sum to be calculated.
(2) Parties to bring in short minutes of order.
(3) Proceedings adjourned to 9.30am Friday 9 December 2011, for argument and final orders.

Catchwords:
TORTS - NEGLIGENCE - Motor vehicle accident - Truck collides with bridge superstructure - Truck driver's lap-only seatbelt did not lock during collision - Serious neck injury sustained - Breach of duty for failure to replace faulty seatbelt - Defendants had knowledge of fault - Failure to provide lap-sash seatbelt not breach of duty - Operational seatbelt would have prevented injuries

TORTS - CONTRIBUTORY NEGLIGENCE - Truck collides bridge superstructure - Motor Accidents Act 1988 s 74(2) does not apply - Plaintiff knew height of bridge - Plaintiff did not measure height of container on truck - Plaintiff did not know extent of truck's weight change after unloading container's contents - Plaintiff relied on signal from oncoming motorist to assess if truck would fit under bridge - Plaintiff did not take available alternative path - Thirty-five percent apportionment just and equitable
DAMAGES - Motor vehicle accident - Serious cervical spinal injury requiring surgical decompression and fusion - Greater than ten per cent whole body impairment - Plaintiff overstating extent of pain and disability - Mobile with difficulty on occasions - No longer able to drive heavy motor vehicles - Twenty per cent residual earning capacity - Future economic loss reduced for vicissitudes of life - Future treatment expenses adjusted for reduced necessity of psychological care - No issue of principle
Legislation Cited: Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1965
Motor Accidents Act 1988
Motor Accidents Compensation Act 1999
Workers Compensation Act 1987
Cases Cited: Barnes v Hay (1988) 12 NSWLR 337
Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Kallouf v Middis [2008] NSWCA 61
March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Nominal Defendant v Livaja [2011] NSWCA 121
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Roads and Traffic Authority v Royal [2008] HCA 19
Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517
Category: Principal judgment
Parties: William Tarres (P)
Rozelle Carriers Pty Ltd (D1)
Hobbs Bros (Carriers) Pty Ltd (D2)
Allianz Australia Insurance Limited (D3)
Representation: L King SC, A McSpedden (P)
J Gracie (D1-D2 on 14.03.11)
K Rewell SC, G Smith (D1-2 on 15.03.11 â€“ 18.03.11; D3)
Napier Keen (P)
Riley Gray-Spencer Lawyers (D1-D2)
TLlawyers (D3)

File Number(s): SC 2009/332335
Publication…

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.

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Details

Case: [2011] NSWSC 1410
Decision Date: 25 November 2011

CaseChat Overview and Summary

The plaintiff, Tarres, sued Rozelle Carriers Pty Ltd after sustaining serious injuries in a motor vehicle accident. Tarres, the driver of a truck owned by Rozelle Carriers, collided with a bridge superstructure when his lap-only seatbelt failed to lock during the impact, resulting in a severe neck injury. Tarres claimed that Rozelle Carriers was negligent for failing to replace the faulty seatbelt and that this failure was a breach of duty. He also argued that the lack of a lap-sash seatbelt was a breach of duty, although the court found otherwise. The central legal issues were whether Rozelle Carriers breached their duty of care by not replacing the faulty seatbelt and if there was contributory negligence on the part of Tarres.

The court held that Rozelle Carriers were indeed negligent in not replacing the faulty seatbelt, as they were aware of its condition. The failure to replace the seatbelt was a direct cause of Tarres' injuries. However, the court determined that Rozelle Carriers were not negligent in not providing a lap-sash seatbelt, as an operational seatbelt would have prevented the injuries regardless of its type. Regarding contributory negligence, the court found that Tarres was thirty-five percent contributorily negligent. Although Tarres knew the height of the bridge, he did not measure the height of the container on the truck or know the weight change after unloading. Tarres relied on a signal from an oncoming motorist to assess whether the truck would fit under the bridge and did not take an alternative route. The court deemed the apportionment of thirty-five percent just and equitable given these circumstances.

The court awarded damages to Tarres for his serious cervical spinal injury, which required surgical intervention. It was established that the injury resulted in more than ten percent whole body impairment. While Tarres overstated the extent of his pain and disability, he was mobile with difficulty and could no longer drive heavy motor vehicles. His residual earning capacity was reduced by twenty percent. The court adjusted the future economic loss for the vicissitudes of life and future treatment expenses, particularly reducing the necessity of psychological care. The final orders reflected these findings, with Rozelle Carriers liable for sixty-five percent of the damages and Tarres for thirty-five percent.

Orders