Wagga Truck Towing Pty Limited v O'Toole; IAG Limited t/as NRMA Insurance v O'Toole

This matter concerned appeals from a decision of the District Court of New South Wales. The primary dispute involved claims for damages for personal injury brought by Mr O'Toole, an assistant, against Wagga Truck Towing Pty Limited and IAG Limited trading as NRMA Insurance. Mr O'Toole was injured when a truck he was assisting to repair moved and trapped him. The injury occurred after Wagga Truck Towing advised the truck owner to remove the tail-shaft of the truck, and the owner directed Mr O'Toole to carry out this task.

The court was required to determine whether Wagga Truck Towing owed a duty of care to Mr O'Toole and, if so, whether it breached that duty by failing to warn that the removal of the tail-shaft might disable the truck's handbrake. Additionally, the court had to consider whether the truck owner breached a duty of care owed to Mr O'Toole by directing the removal of the tail-shaft without ensuring the truck's wheels were chocked. A further issue was whether the truck owner's fault in directing the work without chocking the wheels constituted fault "in the use or operation of the vehicle" for the purposes of the *Motor Accidents Compensation Act 1999* (NSW).

The court found that Wagga Truck Towing did owe a duty of care to Mr O'Toole, and that this duty was breached by failing to advise that the removal of the tail-shaft could compromise the handbrake. The court also found that the truck owner breached his duty of care to Mr O'Toole. The court determined that the fault of the truck owner in directing the removal of the tail-shaft without chocking the wheels was indeed fault in the use or operation of the vehicle.

The appeals resulted in a reallocation of liability. Wagga Truck Towing's appeal was dismissed, while NRMA's appeal against Mr O'Toole was also dismissed. However, NRMA's appeal against Wagga Truck Towing was allowed, with the original apportionment of responsibility being set aside and a new apportionment declared, making both NRMA and Wagga Truck Towing liable to the extent of 50 per cent each. Both Wagga Truck Towing and NRMA were ordered to pay Mr O'Toole's costs of the appeals, apportioned equally between them, and Wagga Truck Towing was also ordered to pay one-third of NRMA's costs of the appeals.