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Monday, 25 July 2011

Liability for injury caused by broken-down truck

A recent case in the New South Wales Court of Appeal, Wagga Truck Towing Pty Limited v O'Toole; IAG Limited t/as NRMA Insurance v O'Toole [2011] NSWCA 191, deals with liability for Mr O'Toole's injuries sustained when a truck rolled onto him. Although - of course - it doesn't have direct application to what happens in the UK, it's a cautionary tale for operators of commercial vehicles (indeed, probably all vehicles) and for towing companies.

Mr O'Toole was a passenger in the truck, an Isuzu, owned by a Mr Russell, his employer, which was carrying a V8 Holden race car when it broke down. Mr Russell parked it up, put it in second gear and engaged the handbrake, then phoned the recovery company. Over the phone, Mr Cool, the recovery driver, suggested, given that he had tools to hand, and an assistant, he get the tail shaft (which I think is what I would call the propshaft - am I out of date?) off to save time once the recovery vehicle arrived. So Mr O'Toole, having asked Mr Russell if the vehicle were safe and having been assured that the handbrake was on, got under the truck and did just that. However, the handbrake did not operate on the wheels, it operated on some part of the transmission (the court heard no evidence about this so there was a lot of inferring involved, including that this particular truck was probably not unique in this respect), so removing the tail shaft freed it to roll down the incline on which it was parked, over Mr O'Toole, causing him serious injury. In fact the truck then proceeded to cross the carriageway and come to rest against a bank on the other side.

The trial judge decided that Mr Russell, who, for the purposes of the Motor Accidents Compensation Act 1999 was the driver and the person in charge of the vehicle, bore 70 per cent of the responsibility for the accident. The towing company which had given him negligent advice took the balance. The fact that Mr Russell had acted on that negligent advice and without it the accident would not have happened did not absolve him from responsibility - indeed, did not even reduce the burden much, although the Court of Appeal (which largely upheld the judge) split the liability 50:50. Mr Russell, though he raced the Holden, was no expert in mechanical matters - but the court thought a reasonable person would have understood that disconnecting the tail shaft would remove the benefit of having engaged the gears, even if they didn't realise that it would also make the handbrake ineffective. The reasonable person would have chocked the wheels before starting to unscrew bots from underneath the vehicle.

Incidentally, although the 1999 Act imposes "no fault" or strict liability in certain circumstances, this is not one of them - the case turned on whether there was negligence.

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