Judgment date: 15 July 2011
Wagga Truck Towing Pty Limited v O'Toole; IAG Limited t/as NRMA Insurance v O'Toole  NSWCA 191
Court of Appeal1
Contribution may be sought from a third party where the negligent advice of that third party has caused the plaintiff to sustain injuries in a motor accident.
A driver may also be found liable where his/her actions, have partially caused injury to the plaintiff, notwithstanding the injury would not have occurred but for the negligent third party advice.
The plaintiff, Mr O'Toole, brought proceedings against Wagga Truck Towing (Wagga) and Mr Russell (insured by NRMA Insurance) in respect of injuries he sustained in Towing an accident on 28 October 2002.
On the day of the accident, the plaintiff and Mr Russell were returning from a race meeting in Melbourne, when Mr Russell's truck (which was carrying a V8 Holden race car) broke down on the highway.
Mr Russell proceeded to park the truck on the side of the highway (on an incline), placed the truck in second gear and then put the hand brake on. Following that, Mr Russell called Wagga Towing and spoke to Mr Cool. Mr Cool, after being told by Mr Russell that the pair were returning home from a race meeting, that there were tools available, and that Mr Russell had assistance (the plaintiff), requested that Mr Russell remove the tail-shaft from the truck so as to not delay the tow truck when it arrived.
A short time following that conversation, Mr Russell began to remove the front bumper bar. Prior to getting under the truck, the plaintiff asked Mr Russell whether the vehicle was "safe". Mr Russell replied that the handbrake was on.
The plaintiff then went under the truck, removed the nuts and bolts and proceeded to remove the tail-shaft. Almost immediately upon the tail-shaft being removed, the truck rolled forward, running over the plaintiff and causing him serious injuries.
Primary Judge's Findings
Neither Mr Cool nor Mr Russell gave evidence at the hearing. Accordingly, a number of inferences were drawn from the evidence tendered, which included various Statements obtained by both parties' investigators.
The primary judge held that the removal of the tail-shaft meant that the handbrake was no longer effective. He found that Wagga Towing and Mr Russell breached the duty of care owed to the plaintiff and apportioned liability 70% to Mr Russell and 30% to Wagga Towing.
Specifically, the trial judge held that Mr Russell was significantly negligent, noting that he was "quite adept" at mechanical matters, parked the vehicle on an incline, and directed the at mechanical matters, parked the vehicle on an incline, and directed the plaintiff to go under the vehicle and remove the tail-shaft, without first chocking the wheels.
The critical findings against Mr Russell (for the purposes of the Motor Accidents Compensation Act (MAC Act)) were:
Mr Russell was the driver and was also the person in charge of the vehicle.
His fault was in the use or operation of the vehicle; that is, his fault concerned the parking and maintenance of the vehicle.
The plaintiff's injuries were caused by the vehicle running out of control.
Liability was also established against Wagga Towing due to the fact that the court accepted that Mr Cool was an expert in the field of towing and provided advice to Mr Russell, without first warning Mr Russell of the dangers in performing the action requested.
Issue On Appeal
Both Mr Russell and Wagga Towing appealed the primary judge's findings.
NRMA submitted the primary judge erred in:
Certain factual findings.
Finding fault on the part of Mr Russell.
Finding that fault on the part of Mr Russell fell within the MAC Act.
Wagga Towing submitted that the trial judge's judgment was infected by a number of errors, which included that:
the trial judge should not have found that Wagga Towing knew or ought to have known that disconnecting the tail-shaft would render the parking brake inoperative;
the trial judge should not have been satisfied that this was something that the Wagga Towing knew, or ought to have known and that Mr Russell (being the owner/driver of the vehicle) was or might be unaware of;
in all the circumstances, Wagga Towing had no duty to warn of the risk that disconnecting the tail-shaft may render the parking brake inoperative.
Hodgson JA delivered the leading judgment with which McColl JA agreed.2
The court held that the facts established the parking brake of the truck did not engage directly with the wheels, but rather somewhere with the transmission of the wheels and the engine.3 Further, it held that if this was the case with the subject truck, then "plainly it could have been the case with other trucks".4
The court said it was open to the primary judge to infer from the circumstances and the evidence given at the trial that Mr Cool was a person who was very familiar with the towing of trucks and the effect of removing a tail-shaft. As such:
"in circumstances where there was no evidence that trucks generally have parking brakes operating directly on the wheels, an inference was open that the feature of this truck, that its parking brake operated on the transmission, was a feature shared with other trucks, and that this was known to Mr Cool."5
In addition, Hodgson JA inferred from the conversation between Mr Cool and Mr Russell (which was tendered by way of an investigative Statement by Mr Russell) that the removal of the tail-shaft was not something with which Mr Russell was familiar.
Hodgson JA found (for the purpose of s 5B of the Civil Liability Act) that:
Mr Cool should have known that there was a risk if he did not alert Mr Russell that the removal of the tail-shaft might disable the parking brake and gears, and thereby allow the truck to run out of control;
whilst, the likelihood of this happening might have been small, the consequences were "horrendous", so the risk was not insignificant;
a reasonable person in Mr Cool's position would have alerted Mr Russell to the risk, noting the consequences that may result if the risk eventuated, and noting the minimal effort in giving the relevant precaution.
The court also held that neither Mr Russell nor the plaintiff were in a class of persons who might reasonably be expected to be aware of the risk that the parking brake would be disabled. Accordingly, Stevens v Gienko6 was distinguished.
As such, the appeal failed.
Negligence of Mr Russell
The court accepted NRMA's submission that the primary judge erred in finding that Mr Russell had greater mechanical expertise than the plaintiff. It was accepted that whilst Mr Russell raced a car and had a shed to put the car into, the evidence did not suggest that he did any substantial work on the car, other than to perform unspecified work with friends.
In rejecting NRMA's submissions to the contrary, the court held that Mr Russell implicitly directed the plaintiff to disconnect the tail-shaft. This was implied by the fact that the plaintiff was an employee of Mr Russell (although was not actually engaged in his usual employment duties) and had travelled to the race meeting to assist Mr Russell (as he had done in the past) with various tasks.7
Hodgson JA held that a reasonable person in Mr Russell's position:
"would have appreciated that disconnecting the tail-shaft would remove any braking effect from the engagement of the gears, and (even without any actual knowledge that disconnecting the tail-shaft would disable the parking brake) would have appreciated that to undo bolts under the truck, on an incline, without chocking the wheels, was a risky ndertaking."8
In terms of s 5B of the Civil Liability Act:
Mr Russell should have appreciated that there was some risk even though he did not appreciate the precise risk which might eventuate.
The likelihood of the risk eventuating, noting the horrendous consequences if the risk did eventuate, rendered the risk not insignificant.
A reasonable person in Mr Russell's position would not have directed the plaintiff to remove the tail-shaft, without at least taking the simple precaution of chocking the wheels.
The court also held that Mr Russell was the owner of the vehicle and the injury was caused during the vehicle running out of control.
In considering whether the fault of Mr Russell was "in the use or operation of the vehicle", Hodgson JA held that:
"Although the vehicle was parked at least half an hour before the fault occurred, the change in circumstances meant that the vehicle became inadequately parked, in the sense of being insufficiently held in its stopped position. In my opinion, this does mean that the fault was in the parking of the vehicle. Also, the arranging and preparing for the towing of the vehicle was part of the process of affecting the maintenance of the vehicle; and in my opinion the fault was also a fault in the maintenance of the vehicle." 9
Accordingly, Mr Russell's appeal against primary liability was also dismissed.
However, notwithstanding the above, NRMA effectively submitted that the apportionment with which the trial judge originally made was infected by the erroneous finding that Mr Russell was "quite adept at mechanical matters".
The court agreed and increased the liability of Wagga Towing to 50%. Hodgson JA said:
"Mr Cool was the expert who initiated the process without warning; while Mr Russell on the site, knew of the slope and knew that the vehicle was not chocked, but still directed Mr O'Toole to undo bolts under the truck." 10
Insurers should be aware that in appropriate cases a liability to contribute will arise, especially when a driver has deferred to the expertise of a third party and relied on that advice. However, it is important to note that a driver will still be liable even if he/she defers to the expertise of a third party if he/she has been negligent in his/her own actions.
1 Giles JA, Hodgson JA and McColl JA
2 Giles JA substantially agreed although preferred not to rest fault with the parking of the vehicle – see para 1.
3 The Court of Appeal commented that this was common ground on the appeal.
4 Hodgson JA at 23
5 Hodgson JA at 25
6  NSWCA 53
7 It was found that the plaintiff did no more than help with minor incidental tasks such as changing stickers on the car, washing the car and unloading spare wheels.
8 per Hodgson JA at 42
9 per Hodgson JA at 46
10 per Hodgson JA at 51
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