In this alert, Senior Associate Scott Macoun and Solicitor Abbey
Wilkinson discuss a recent appeal in which an employer was saved
from an adverse finding on liability in a truck crash, due to the
worker's excessive driving speed, and his lawyers' brief
Even if there has been a failure on the part of the employer,
such as not loading a trailer correctly; unless that failure was
the cause of the accident the employer will not be liable.
The claimant in this case, BlueScope Steel Ltd v
Cartwright  NSWCA 25, was a truck driver who was
employed by Mannway (employer). The incident
occurred when the claimant was transporting coils on behalf of
BlueScope Steel Ltd (Bluescope). The claimant was
driving on the Princess Highway and, during a left hand turn, the
trailer capsized to the right and caused the truck to crash. The
claimant suffered serious injuries as a result of the crash.
Bluescope produced and provided to the employer guidelines for
the secure loading of the coils for transportation. However,
shortly before the claimant's accident, Bluescope changed how
the coils were manufactured and packaged (an additional timber
runner was now placed underneath the coils) without informing the
The method of loading the coils was not altered to allow for the
change which resulted in the coils not being as stable in the
trailer during transport as they had previously been. The method of
loading required the use of wedges under the coils which, after the
addition of the timber runner, no longer touched the coils.
The claimant was awarded $926,000.00 by the primary judge, with
judgement against Bluescope and the employer. That decision was
appealed by Bluescope, with cross-appeals made by the claimant and
the employer's insurer.
The decision of the primary judge was appealed for the following
The primary judge failed to make a finding about the speed that
the claimant was travelling at the time of the accident; and
The primary judge failed to accept the evidence of the
parties' expert engineers: that even if the load was not loaded
in a stable manner due to wedges not making contact with the coils,
the load still would not have shifted and fallen within the trailer
if the truck was travelling below 75km per hour. The claimant had
given evidence that he was travelling at 55km per hour.
The New South Wales Court of Appeal held that:
The accident was caused by the claimant travelling at an
Bluescope was not in breach of the duty of care that it owed
the claimant because, although it did not tell the employer about
the change to the coils, the guidelines that they had provided to
the employer made it clear that the wedges used in the loading
process were meant to make physical contact with the coils. The
court found that the employer should have adapted its loading
process to take into account the change to the coils and to make
sure the wedges still came into contact with the coils. This issue
did not have a material impact on the claim because the court found
that it was the excessive speed that caused the accident, not the
issues with the loading of the truck; and
The claimant was entirely responsible for his injuries.
As the claimant's claim against the employer was based on
the employer's failure in relation to the packing of the coils,
and the Court of Appeal found that this failure did not cause the
incident, the claimant's case against the employer failed. The
Court of Appeal indicated that a broader claim against the employer
may have been successful, such as a claim based on failure to
provide adequate training in relation to driving trucks around
corners at an appropriate speed.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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