Australia: Double whammy: collision gives rise to criminal and civil proceedings

Last Updated: 21 May 2019
Article by Rebecca Niumeitolu
Most Read Contributor in Australia, October 2019

On 28 June 2012 there was a collision between a freightliner and several other vehicles at the intersection of the Cumberland Highways and Hume Highways in New South Wales.

The collision arose when the driver carrying a load of wood composite products navigated the turn at the intersection at an excessive speed. This caused its load, which was inadequately secured, to shift and destabilise the vehicle. The vehicle rolled onto its right-hand side, crushing a nearby vehicle and causing a collision with other vehicles. The occupant of one vehicle died and occupants of another suffered injury.

If the facts of this case ring a bell it's because they gave rise to the conviction of the consignor of the products, Futurewood, and its directors in 2015 for breaching load restraint requirements under the Road Transport (General) Act 2005. Futurewood was fined $27,500.

Now, it comes before us as a result of claims made by or on behalf of the road users who suffered injury or death in the collision (Road Users) due to the negligence of several CoR parties, namely the:

  • driver
  • owner of the prime mover substituted by its compulsory third party insurer (owner)
  • consignor.

The driver and consignor also brought cross-claims against QBE Insurance (Australia) Limited (QBE) as the insurer of the driver's employer and owner of the trailer (employer).

Due to the complexity of issues arising in this case and the insight it offers into the steps that each CoR parties should have taken to avoid risks to the safety of their transport activities and their ultimate liability, this claim of negligence is relevant to your own CoR practices.

The claim

The Road Users made a claim for compensation under the Civil Liability Act 2002 (CLA). This was not a criminal prosecution under the HVNL.

Generally speaking the CLA allows for a person to make a claim against another person where they acted negligently – i.e. where each CoR party owed a duty of care to the Road Users, breached their respective duties and as a result caused damage to the Road Users. The CLA also provides for liability to be apportioned where there are multiple wrongdoers that contributed to damage suffered.

In this case, the Court held that there were several causes of the accident arising from the negligence of multiple wrongdoers (being the CoR parties) including:

  • the driver was driving the freightliner at an excessive speed for the load as he navigated the corner
  • the load had been inadequately secured within the container by the foreign exporter
  • the container was overweight
  • each CoR party failed to make reasonable enquiries that could have avoided the foreseeable risk of the rollover and the damage suffered:
  1. the driver should have made inquiries about the weight of the container and whether the load was secured
  2. the consignor should have made the foreign exporter aware of the load restraint requirements applying to the consigned goods or otherwise ensured that they were met
  3. the employer should have contacted the consignor to find out how the load was restrained, where it was aware that the consigner had not properly restrained goods in the past.

The Court apportioned fault against the CoR parties as follows:

  • driver and Owner: 70%
  • consignor: 20%
  • employer: 10%.

Why is a negligence case relevant to your CoR practices?

  • obligations under CLA and HVNL operate simultaneously –CoR parties should be aware that if an accident arises as a result of driving at an excessive speed, driving with an unsecured load and/or in breach of mass requirements, these factual circumstances could result in criminal prosecution and claims under CLA. This means that their potential liability does not just stop at potential penalties and compensation orders under the HVNL but also payment of civil damages related to injuries suffered by third parties.
  • claims under the CLA can take account of industry standards so your compliance with the HVNL could avoid or limit your liability under the CLA – A claim under the CLA can take account of what a reasonable person would have done if they were in the position of each of the alleged wrongdoers. In this case, references to industry standards and practices for loading shipping containers, securing loads and making reasonable inquiries informed what a reasonable person would or should have done if they were in the position of each of the CoR parties in response to their transport risks. Had the CoR parties made the reasonable inquiries identified by the Court, they would have been aware of the mass and restraint breaches and would not have transported the goods as they were. They would have repacked the load with appropriate restraints or delivered the goods separately. It is likely that this would have avoided the accident. If a collision did by chance occur, then it would be more difficult to establish that the CoR parties acted negligently where safety risks were properly accounted for in accordance with the primary duty.
  • the multiple causes of the collision provide an opportunity to assess each party's obligations across the CoR.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions