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NSW Duty of Care Case Raises Mass Issues

May 7, 2015

Not every road incident will become a matter of investigation and prosecution for chain of responsibility or Heavy Vehicle National Law breaches. But often, the circumstances of civil claims can also raise interesting questions for parties in the chain.

Take a NSW Supreme Court of Appeal case earlier this year, where BlueScope Steel successfully overturned a judgment awarded against it for over $850,000 in damages.

The case arose from a serious incident where a prime mover carrying BlueScope’s steel coils capsized while manoeuvring a corner on the Princes Highway, injuring the driver.

Were loading errors the cause?

BlueScope had produced secure loading guidelines for the driver’s employer, Mannaway Logistics. However, shortly before the incident, it had begun manufacturing the coils differently without telling Mannaway.

The consequence of this change was that Mannaway’s existing method of loading no longer ensured that the coils were as stable as they had previously been.

The injured driver commenced proceedings against Mannaway and BlueScope, claiming both had breached a duty of care to him. At the Common Law Division, the judge agreed this was the case.

Appeal: speed the cause, not loading

BlueScope’s appeal focused on the speed at which the driver had been travelling. Based on expert evidence, it argued that even if the loading method had been inadequate, the coils would have only toppled if the driver had exceeded 75km/hr on the turn.

The appeal judges found that the driver’s speed was indeed the main cause of the crash, and that he had not established that loading was a cause.

BlueScope were also helped by a finding that Mannaway knew or ought to have known that that the new model of coils were improperly mounted at the time they were loaded.

The wedges Mannaway used to restrain load movement were not connecting to the coils or pallets. One judge concluded that Mannaway was “an otherwise competent supervisor” that “did not need BlueScope looking over its shoulder”.

Because the driver was found to be entirely at fault due to his speed, the orders against both BlueScope and Mannaway’s insurer were overturned.

What would happen under CoR?

Even if it was not the cause of an incident, an unsecured load the size of the steel coils could be considered a substantial risk breach under the CoR load restraint provisions.

In the event of an investigation, this could have consequences for loading managers, packers and the employer or operator that trained them.

As for a consignor (as BlueScope was in this instance) – what happens under CoR when they change the design of their goods?

Having written secure loading guidelines in place with carriers is a good foundation on which to begin. However, it is also good practice for a consignor to inform a carrier of any changes to the goods which may affect previous loading practices – especially if they are to demonstrate they have taken “all reasonable steps” to meet their obligations.

Until next time,
The CoR Adviser Team