APPEALED FROM: Beswick v Tamarack Pty Ltd [2009] TASSC 109

Appeal and New Trial - Appeal - General principles - Interference with discretion of court below - In general - General principles - Functions of appellate court - Generally - Exercise of broad judicial discretion - Where no error of principle - Reduction of damages for contributory negligence.

Supreme Court Civil Procedure Act 1932 (Tas), s45(1).

Norris v McGeachy [2010] TASFC 4, followed.

Judgment Number: [2010] TASFC 5

1 I agree with Blow J's reasons for judgment and would also dismiss the appeal.

2 This appeal relates to a log truck accident that occurred in September 1996. It was a single vehicle accident. The log truck was being driven by the respondent, Mr Beswick, in the course of his employment by the appellant, Tamarack Pty Ltd. He was driving a load of logs from Tarraleah to the paper mill at Boyer. The accident occurred on one of a series of bends at Plenty. The respondent had been driving log trucks through those bends for at least nine years. On this occasion he found himself unable to take one of those bends, ran off the road, and was injured. He sued his employer for damages for negligence. Amongst other things, he alleged that a fellow employee had been negligent in adjusting the truck's suspension system, that there had been negligence in the way the truck was loaded, and that his training had been inadequate. The action went to trial. The quantum of damages was agreed. The learned trial judge found that the employer was liable in negligence, but that there was contributory negligence on the part of the respondent. He reduced the respondent's damages by 20 per cent because of his contributory negligence. The employer has appealed. It contends that one of several findings of negligence should not have been made, and that the reduction for contributory negligence should have been significantly greater than 20 per cent.

3 The learned trial judge made a finding that an employee of the appellant named Pearton elevated the suspension ride height of the truck on the day of the accident, before the respondent commenced his shift, in an attempt to improve the truck's handling; and that the increased ride height would have caused a corresponding increase in the height of the centre of gravity and a greater degree of instability, and given the driver false feedback concerning the stability of the vehicle. His Honour concluded that, in making the adjustments to the suspension, Mr Pearton failed to exercise reasonable care in relation to foreseeable injury to the driver, and also that the appellant was vicariously liable for Mr Pearton's actions. Those conclusions are not challenged.

4 The rig driven by the respondent consisted of a prime mover and a single trailer "log jinker". The trailer had four vertical steel posts along each side. They are known as bolsters. The sections created by the two sets of forward bolsters and the two sets of rear bolsters are known as bunks. The unchallenged evidence as to the loading operation was as follows. An employee of the appellant named Gill loaded the truck, using a log loader. While he did that, the respondent remained in the truck, monitoring an air pressure gauge. The front bunk was loaded first. The respondent had radio contact with Mr Gill. The respondent's instructions were to load the front bunk until the air pressure gauge reached 60 kilopascals (kpa). The learned trial judge made findings that Mr Gill stopped loading the front bunk because he considered that there was already too much on it; that he said words to that effect to the respondent; that the gauge was reading less than 50kpa at that stage; that more logs were loaded onto the front bunk; that the front bunk bore an uneven share of the load; and that the drive axles of the truck were therefore overloaded. He also made findings that the extra loading was somewhere in the order of two to four tonnes, and that the excessive load created an overall higher centre of gravity of the load. He made findings that the loading system on the respondent's truck was likely to lead to overloading on the front bunk; that the risk of a rollover crash was therefore materially heightened; that the respondent's truck was the only one in a fleet of about 18 that was not fitted with a better loading system, the Lodec system; and that, by having in place the system that required the front bunk to be loaded until the reading was 60kpa, the appellant breached its duty to take reasonable care not to expose the respondent to a risk of foreseeable injury. That conclusion is not challenged in these proceedings, but the appellant contends that its negligence in this respect did not materially contribute to the accident.

5 At the trial, it was argued that the respondent's speed immediately before the crash was attributable to the appellant having failed to train or instruct him having regard to the truck's actual or potential characteristics. The learned trial judge observed that no response was made to that part of the respondent's case. After reviewing the evidence as to the extent of the appellant's knowledge as to the respondent's speed and manner of driving and the handling of the truck, his Honour concluded that the appellant breached its duty by failing to take reasonable care to give training or instruction so as to obviate or minimise the risk of injury caused by a driver travelling at an excessive speed. The appellant contends that that conclusion was wrong.

6 His Honour found that all of these breaches of duty caused, or materially contributed to, the respondent's injury. That is to say, he found the appellant liable on the basis of Mr Pearton having raised the suspension ride height, on the basis of its failure to have had in place a load measuring system which did not create a risk of injury by causing overloading of the front bunk, and on the basis of its failure to provide proper driver training.

7 The learned trial judge found that there was contributory negligence on the respondent's part in two respects - in failing to have his load adjusted before he set off on his journey, and in travelling at an excessive speed through the bend. He referred to evidence given by the respondent that he customarily drove at speeds well in excess of the speed appearing on an advisory speed sign at the commencement of a series of bends that included the bend in question. Although referred to in the evidence as bend 6 it was the fifth bend into the series. He commented that that practice was "one fraught with danger". He referred to evidence that another driver regularly drove through the corners at Plenty at some 10Km/h or so less than the respondent regularly did, and commented that there appeared to have been no reason why the respondent could not have adopted that practice. He referred to evidence from the respondent that he was under no time pressures. He referred to evidence that the respondent was aware that there was something particularly unusual about the load; that the truck had a history of handling problems; and that the truck was behaving in a "foreign manner" on the night of the accident. He commented that its handling behaviour ought to have put the respondent on notice that care might be required, even though the change was seemingly for the better. He referred to the respondent's evidence that he had noticed an increased gap between the drive wheels and the mudguard. That increased gap was the result of Mr Pearton's adjustment.

8 In reaching the conclusion that a reduction of 20 per cent was appropriate, the learned trial judge said this:

"Of significance in this exercise is that the defendant provided the plaintiff with a truck fitted with a load measuring system which effectively involved 'guesswork'. At the same time, it provided erroneous advice as to the pressure which would represent the appropriate load on the drive axles, and instructed him to attempt to achieve the maximum legal load with tolerances. Of particular significance is that I have found that the plaintiff's speed was at least, contributed to by the defendant's negligence in failing to instruct or warn him against that practice in particular circumstances. Those circumstances existed in relation to the load on the night. In my view, it is just as between the parties, that the plaintiff bear responsibility for his injuries to the extent of 20 per cent."

9 There are five grounds of appeal. Ground 1 relates to the evidence of an engineer, Dr Prem, who was called as an expert witness for the appellant. This ground involves assertions that the learned trial judge made errors in relation to three aspects of Dr Prem's evidence. Counsel for the respondent conceded that his Honour did make errors as asserted in relation to two aspects of Dr Prem's evidence, but submitted that those errors were inconsequential. He did not concede that any error had been made as to the third relevant aspect of Dr Prem's evidence.

10 When a vehicle travels in a circle or around a bend, centrifugal force will tend to push it outwards. The magnitude of the centrifugal force is proportionate to the lateral acceleration, ie sideways acceleration, of the vehicle. If the lateral acceleration of a vehicle exceeds a certain figure, the vehicle will roll over, towards the outside of the circle or bend. The rate of lateral acceleration which, when reached, will result in a vehicle beginning to roll over is known as the static rollover threshold ("SRT"). The SRT of a particular log truck depends, amongst other things, on the elevation of its centre of gravity. If the load carried by the truck varies from journey to journey, the centre of gravity will also vary from journey to journey, and so will the SRT.

11 Two reports by Dr Prem were tendered as exhibits at the trial. In those reports he discussed the lateral acceleration of the truck as it passed through the bend in question, and the SRT of the truck. He provided a formula for the calculation of lateral acceleration, as follows:

•

V represents the speed of the truck, expressed in metres per second.

•

r represents the radius of the curve, expressed in metres.

•

g represents the acceleration due to gravity, which is approximately 9.8m/s2. (That is to say, when an object falls towards the Earth, gravity causes its downward speed to increase by about 9.8 metres per second for every second that it continues to fall.)

•

e represents the superelevation, ie the slope of the road, expressed as a decimal. (For example, if the curved roadway is cambered with a slope of 3 in 10, or 30%, the superelevation is expressed as 0.3.)

•

The lateral acceleration calculated in accordance with this formula is expressed as a factor of g. (Thus, for example, a lateral acceleration of 0.2 or 0.2_g_ is equal to 0.2 x 9.8m/s2.)

13 In his first report, Dr Prem set out a series of figures that he had calculated for the truck's lateral acceleration on various bends at various speeds. Those figures made no allowance for superelevation. In his second report, he provided a similar series of figures taking superelevation into account. In his reasons for judgment at par[172] the learned trial judge made the mistake of thinking that the figures in the second report made no allowance for superelevation, and went on to calculate what certain figures would be if an appropriate adjustment was made to allow for superelevation. Counsel for the respondent conceded that his Honour made this error.

14 In the same paragraph of his reasons, the learned trial judge compared his adjusted figures for lateral acceleration with a figure provided by Dr Prem for the SRT of the truck in his first report. He said this:

"However, I should immediately note that, as was amplified in cross-examination and as Dr Prem agreed, the lateral acceleration figures of 0.340 and 0.385 for bend 6 [where the accident occurred] given in the first and second reports, make no allowance for superelevation. He agreed that factoring in a 10.6 per cent figure to the value of 0.340, gives the result of 0.234. Obviously, 0.385 becomes 0.279. This needs to be compared to the estimated SRT of the truck as 0.314g."

15 In adopting the SRT figure of 0.314g, his Honour made a second error. That figure came from Dr Prem's first report, but Dr Prem had revised it in his second report, and adhered to what he said in his second report. In his second report, he expressed the opinion that the SRT of the truck was between 0.273 and 0.309. Counsel for the respondent conceded that his Honour had made this second error.

16 Dr Prem's evidence therefore was to the effect that the lateral acceleration of the truck on the bend where the accident occurred was between 0.340 and 0.385, and that the SRT of the truck was between 0.273 and 0.309. On those figures, the lateral acceleration was above the threshold, ie great enough for the truck to roll over. As a result of his two errors, the learned trial judge made a comparison between reduced lateral acceleration figures (0.234 to 0.279) and an excessive threshold figure (0.314). On those erroneous figures, the lateral acceleration would not have been sufficient to cause the truck to roll, but of course it did.

17 Counsel for the appellant made a submission to the effect that the result of the errors in par[172] was that the learned trial judge did not fully appreciate how negligent the respondent was in travelling at an excessive speed. I will return to the question of the significance of the errors in par[172] after discussing the other suggested errors relating to Dr Prem's evidence.

18 Counsel for the appellant submitted that the learned trial judge made a series of errors as to assumptions made by Dr Prem about the loading of the truck. Dr Prem undertook calculations based on four different load configurations, two of which involved overloading, but the learned trial judge referred only to the calculations concerning the two load configurations that did not involve overloading. Counsel relied on four passages in his Honour's reasons:

•

In par[157] his Honour said of Dr Prem, "... his modelling is based on an assumption of a 'correctly loaded' truck, and beyond an allowance for a maximum load height of 2.4 metres, his evidence does not take into account or address the issue of possible overloading of the front bunk."

•

At par[165] his Honour assumed that Dr Prem's second report concerned the modelling of only two load configurations. His Honour said, "Lastly, two load configurations were considered; the first was with a front bunk load height of 2.1 metres as in the previous report, but with a second configuration with the front bunk load height at 2.4 metres. These were said to represent average and maximum loads."

•

At par[183], when comparing Dr Prem's opinions with those of expert witnesses called on behalf of the respondent, his Honour said, "... Dr Prem focuses on the aspect of speed but does so on the assumption of a correctly loaded vehicle, and pays no regard to the suggestion of overloading on the front bunk."

•

At par[191], when considering the significance of uneven loading, his Honour said, "It should also be borne in mind that all of Dr Prem's modelling assumed a correctly loaded truck, implicit in which is a distribution of the load, proportionate with the maximum legal axle loads."

19 Dr Prem, in his second report at pages 5 to 7, calculated the SRT of the truck on the basis of four different load configurations, not two. The first and second assumed payload heights of 2.1 metres and 2.4 metres, which did not involve overloading. The third and fourth assumed the vehicle to be overloaded, with the payload centre of gravity at 3.0 metres and 3.15 metres. Those figures had been used by one of the respondent's expert witnesses, Mr Lambert. Clearly, his Honour made errors in the passages I have quoted. That was not disputed on the hearing of the appeal.

20 At page 6 of his second report, Dr Prem said, "It is important to note that all four log truck variants considered in this investigation represent correctly loaded vehicles operating at maximum legal axle group loads." Counsel for the appellant submitted that none of the assumptions made by Dr Prem as to load configurations excluded the possibility of the front bunk being overloaded. In my view that submission went a little too far. However I accept that the assumed load configurations were all consistent with the front bunk not being so overloaded that the maximum permitted axle loads were exceeded.

21 Counsel for the appellant submitted that the errors made by the learned trial judge as to Dr Prem's assumptions as to load configurations contributed to the rejection of Dr Prem's opinions about the significance of speed as a causative factor, and thus affected his Honour's decision as to the apportionment of liability between the parties.

22 Dr Prem used the four different hypothetical load configurations only for the purpose of calculating the SRT of the truck. That is to say, he calculated the SRT on the basis of four different sets of assumptions as to the loading of the front bunk. The results varied from 0.273 assuming the centre of gravity at 3.15 metres to 0.309 assuming a payload height of 2.1 metres. There was no suggestion that the other expert witnesses disagreed with Dr Prem's assessment that the truck's SRT would ordinarily have been in the range of 0.273 to 0.309. His Honour took that lack of disagreement into account at par[190] of his reasons. It must follow that his Honour's error in overlooking the third and fourth loading configurations was absolutely inconsequential. There is nothing in his reasons that would suggest that that error affected any of his findings or conclusions in any way.

A safe speed for the truck to negotiate the bend

23 The advisory speed sign at the commencement of the series of bends that included the bend in question suggested a maximum speed of 55Km/h. Dr Prem's evidence suggested that the truck, as loaded, could have negotiated the bend in question safely at that speed or a slightly greater speed. The learned trial judge made a finding, which is not challenged, that the actual speed was in the vicinity of 70 to 72Km/h.

24 At par[195] of his reasons, his Honour said, "It is neither possible nor necessary to settle on a speed at which the truck on this particular occasion could have safely negotiated the corner." The appellant contends that that amounted to an erroneous conclusion. The respondent contends that the quoted sentence involved no error at all.

25 It is necessary to consider whether it is possible to "settle on" a maximum safe speed. If an engineer were to calculate a maximum safe speed for the truck in question, loaded as it was on the journey in question, to negotiate the corner in question, he or she would have to undertake calculations, and then make a value judgment as to a reasonable margin for error. In par[18] of his reasons, the learned trial judge set out an uncontroversial list of the factors that determine the limits of vehicle stability in a rollover situation at a curve. His list reads as follows:

"• The height of the centre of mass ("COM") of the vehicle; - the higher the COM, with all other factors constant, the less stable the vehicle.

•

The track width - (the width between the centres of the wheels or dual wheels at the end of each axle); - the wider the track with all other factors constant, the more stable the vehicle.

•

The stiffness of the tyres and the roll stiffness of each suspension; - the higher the roll stiffness, the less the vehicle leans and the more stable it is.

•

The characteristics of the load.

•

The vehicle's speed.

•

The inverse of radius of the curve the truck is following; - double the radius and the side force is halved.

•

The superelevation of the curve (the slope of the road pavement towards the inside of the curve); - the greater the superelevation, the less likely the vehicle is to rollover.

•

The dynamics of travel down the road."

26 To determine a safe maximum speed for a particular vehicle with a particular load rounding a particular curve, all of the factors in the above list other than speed would have to be taken into account. Some of the variables are easier to calculate than others. Since no one measured the height of the load for the journey in question, the height of the centre of mass could only be estimated. There was evidence that the load was unevenly distributed, but the evidence of its distribution was imprecise. One could only estimate the loads that it placed upon the different axles. Another significant point is that it is the radius of the curve that the truck is following, not the radius of an imaginary line along the middle of its lane, that is significant. One of the respondent's expert witnesses, Mr Lambert, described how a driver could increase the radius by using the whole of his side of the road, approaching the bend from the outer extremity of his side of the road, cutting the corner using the road shoulder at the apex of a left-hand bend, and then returning to the outer side of his lane. It is also significant that the superelevation might not remain constant, but might vary as one travels along the road. Given the complexity of the calculations that would be involved, the need to estimate some of the variables for the purpose of such calculations, and the need to make a value judgment as to a margin for error, there is no such thing as a precise speed "at which the truck on this particular occasion could have safety negotiated the corner". The learned trial judge was quite right to conclude that it was not possible to settle on such a speed.

27 As a matter of law, it is not necessary to settle on such a speed. When it is alleged that a motorist has been negligent in travelling at an excessive speed, the critical question is whether that fact has been established on the balance of probabilities. It is not necessary, as part of the reasoning process, to determine the highest speed at which the motorist could have travelled without his or her speed having been excessive.

28 For these reasons, I reject the appellant's contentions as to this part of ground 1.

29 Dr Prem's opinion was that the rollover commenced from the rear of the trailer. The respondent's expert witnesses, Mr Lambert and Dr McLean, were both of the opinion that the rollover commenced from the drive axles. On this point, the learned trial judge accepted their evidence and rejected the opinion of Dr Prem. It is clear from par[184] of his reasons that he did so because of the following factors:

•

Dr McLean was unfamiliar with Dr Prem's hypothesis as to the start of the rollover until it was explained to him in cross-examination. He spontaneously rejected it. His Honour found that spontaneous rejection to be persuasive.

•

When the truck left the road, it damaged an Armco railing on its right-hand side of the carriageway. Dr Prem's opinion was that the truck and trailer were already on their right sides as they left the road, but the damage to the railing was inconsistent with that hypothesis. It was consistent with Dr McLean's opinion. He believed that the vehicle was still upright when it began to leave the road, and that it rolled to its right only as a result of sudden deceleration when the prime mover hit a tree.

30 Dr Prem held the opinion that travelling at an excessive speed was the sole cause of the accident. The learned trial judge rejected that proposition, but still found that the respondent's negligence in travelling at an excessive speed was one of the causes of the accident. The errors made by the learned trial judge related to the taking into account of superelevation by Dr Prem in his second report, the figures for the SRT of the truck arrived at by Dr Prem at the time of his second report, and the fact that Dr Prem's modelling included configurations involving some overloading. Whilst his Honour discussed those aspects of Dr Prem's report in his reasons, none of those matters was relied upon by him in the reasoning that led to the conclusion that excessive speed was not the sole cause of the accident.

31 It is clear from his Honour's reasons that the matters that led him to reject Dr Prem's opinion as to that point were essentially as follows:

•

Dr Prem concluded that the respondent must have been using the entire road space to negotiate the curve, travelling from one side of the road to the other and crossing continuous double white lines. However that was inconsistent with unchallenged evidence given by the respondent to the effect that he always kept the truck within its lane on the Plenty bends, and that he did so on the occasion in question. At par[193] of his reasons, the learned trial judge observed that the respondent's evidence was consistent with the observations of Mr McGregor, a fellow employee who had often travelled in convoy with the respondent, and who gave evidence as to the respondent's driving habits. His Honour also took into account the fact that the respondent's evidence was consistent with evidence given by Dr McLean as to observations made when travelling in coal trucks, and with calculations undertaken by Mr Lambert which showed that it was possible to negotiate the bend in question at the relevant speed.

•

Dr Prem's calculations resulted in a conclusion that a correctly loaded truck would never make it around the relevant corner at 72Km/h if it were wholly within its proper lane. That was inconsistent with the evidence of the respondent, Mr McGregor and Mr Lambert.

•

At par[178] of his reasons, his Honour noted another inconsistency between Dr Prem's opinion and the respondent's unchallenged evidence. In his evidence, Dr Prem said, "Once the driver realised something was happening and the vehicle was running wide, his instinctive reaction would be most likely to brake and then steer to the left." However the respondent's unchallenged evidence was that the truck veered to the right, and that he then steered to the right to try to keep control, and to try to balance the load.

32 It is clear that the learned trial judge rejected Dr Prem's opinions because they were inconsistent with evidence as to the facts which he found convincing. The errors that he made when summarising and reviewing Dr Prem's evidence plainly made no difference to his Honour's conclusions.

33 In my view the learned trial judge was right to reject Dr Prem's opinions as to what part of the vehicle started to roll first, and as to the significance of the respondent's speed, for the reasons summarised above. In addition, on the question of speed, the following matters also weighed in favour of rejecting Dr Prem's conclusion:

•

In his second report, Dr Prem undertook calculations of the truck's lateral acceleration not just on the bend where the accident occurred, which was referred to at the trial as bend 6, but also in relation to earlier bends in the same series of bends at Plenty. According to his calculations, the truck's lateral acceleration on bend 5, at the speed travelled by the respondent, would have been 0.314. Since its SRT was in the range from 0.273 to 0.309, the truck would have rolled every time the respondent drove it around bend 5 at its usual speed. Since it never did, even on the day of the accident, Dr Prem's figures must have been wrong.

•

Dr Prem's second report did not reveal what figures he used, when calculating lateral acceleration, for the radius of the curve or the superelevation of the road. When cross-examined, he tried to find what figures he had used, but was unsuccessful. It therefore was not possible for the learned trial judge, and is not possible for this Court, to check whether two basic assumptions underlying his calculations accord with the evidence as to the tightness of the curve and the camber of the roadway.

34 The final matter to be considered in relation to ground 1 is whether the identified errors made any difference to the conclusion of the learned trial judge that the appropriate reduction in consequence of the respondent's contributory negligence was one of 20 per cent. As I have said, it was submitted on behalf of the appellant that the errors made in relation to lateral acceleration resulted in the learned trial judge not fully appreciating how negligent the respondent was in travelling at an excessive speed. In my view no such cause and effect have been demonstrated. It is clear that the decision to reduce the respondent's damages by 20 per cent was not based, even in part, upon any erroneous view as to the minutiae of Dr Prem's evidence. Despite the rejection of Dr Prem's evidence, his Honour concluded that the respondent's practice in travelling at his usual speed around the bend in question was "one fraught with danger". There is no reason to think that a perfectly accurate understanding of Dr Prem's evidence as to lateral acceleration and load modelling would have made any difference to the conclusion reached as to the apportionment of responsibility between the parties. It follows that ground 1 must fail.

35 This ground relates to the appellant's contentions to the effect that the learned trial judge erred in finding that it was negligent in failing to give training or instruction as to the risk of travelling at an excessive speed, and that such a breach of duty caused or contributed to the respondent's injury.

36 The finding made by the learned trial judge as to the relevant breach of duty appears at the end of par[199] of his reasons. After reviewing all the circumstances that created a risk of a driver being injured as a result of travelling at an excessive speed, and the evidence as to the appellant's awareness of those circumstances, his Honour said:

"I think a reasonable employer would have taken steps to obviate or minimise the risk of injury caused by a driver travelling at an excessive speed in all of those circumstances. There is nothing to suggest that such training instruction was unduly onerous or impracticable for any reason. For those reasons, I find the defendant failed to take reasonable care, and was in breach of its duty in this respect also."

37 The finding that that breach of duty was a contributing cause of the accident was made by his Honour at the end of par[204] where he said:

"Although the evidence is meagre as to this point, I am prepared to infer that on the balance of probabilities, had the plaintiff been trained, and warned against excessive speed having regard to actual or potential handling problems with the truck, he would have complied and driven more cautiously. Consequently, speed would not have been a material contributing factor in the accident."

38 The relevant particular of negligence alleged that the appellant:

"Failed to train the Plaintiff in driving the truck, in particular that by reason of the suspension system and/or overloading and/or unevenly distributed load he should enter corners cautiously at a reduced speed and that the truck may become destabilised after successive corners."

39 The appellant contends that the inference that any such training was necessary, and the inference that such training would have resulted in speed not having been a material contributing factor in the accident, are inferences that were not open on the primary facts.

40 The evidence on which the learned trial judge based his conclusions in relation to training can be summarised as follows:

•

There was evidence as to a journey when the appellant's assistant transport manager supervised the respondent's driving. His Honour accurately summarised that evidence as follows:

"The unchallenged evidence is that the plaintiff, at an unidentified time before the accident, travelled through the Plenty bends with Mr Cox, the assistant transport manager. When loaded, he travelled through the Plenty bends at his usual speed. Mr Cox was sitting in a position where he could observe the speedometer. Mr Cox said nothing about his speed or manner of driving."

•

There was evidence that the truck was fitted with a Tripmaster recording system which recorded its speed and its engine speed at one second intervals. The learned trial judge inferred that the appellant company was at all times in a position to check the respondent's speed and manner of driving, correlated to particular stretches of roadway, by reference to the Tripmaster data.

•

His Honour was satisfied that the appellant company had actual awareness of "the laws of nature to do with forces, momentum, and the centre of gravity". The quoted words came from a document that the appellant provided to the respondent, entitled "The Professional Driver's Ten Commandments".

•

His Honour accepted that the respondent and Mr Pearton both complained to the appellant about the handling of the truck, and that the respondent blamed the handling difficulties on overloading caused by the loading system that had been adopted.

•

His Honour inferred that Mr Pearton's intervention on the day, when he raised the suspension ride height, suggested that problems with the handling of the truck were continuing as at that day.

•

His Honour concluded that the appellant had "actual or constructive knowledge of centre of gravity issues correlated with high rollover risk".

•

His Honour accepted the evidence given by the respondent about complaints by him that the truck was continually overweight, and that he believed that that was causing veering problems. In particular, he accepted evidence that the respondent complained to a director of the appellant company, Mr Vanderwal, who responded that they were looking at another device, but did not want to fit a Lodec system to the truck because it would intrude on the weight the truck could carry.

•

There was the evidence that the respondent had been provided with "The Professional Driver's Ten Commandments". One of the commandments read, "When on the road, observe all state laws and respect the laws of nature to do with forces, momentum, and the centre of gravity of your vehicle." Another was, "Don't hesitate to slacken your speed and be ready to stop the instant potential danger appears." The respondent gave evidence that his attitude to that document was fine, and that he had no problem with it.

•

There was evidence that the respondent underwent an assessment by an instructor from the Driver Education Centre of Australia in December 1993, less than three years before the accident. His Honour summarised that evidence at par[22] of his reasons. The instructor travelled with the respondent on two return trips. They did not go through the bends where the accident occurred. The respondent said he went past a 65Km/h advisory speed sign at approximately 90Km/h, but that the instructor said nothing about his speed on any bend. In a driver evaluation report, the instructor gave him an "A" for his "speed for environment". The instructor ticked a box indicating that the respondent had an excellent attitude, was very keen to learn, applied all he had learned during the course, and was considered a good and safe driver. The instructor added a handwritten comment that the respondent was good to work with and "had a good attitude towards training". His Honour found that that assessment did not contain any adverse comment as to the speed at which the respondent negotiated corners, and generally showed a competent driver alert to his responsibilities.

•

His Honour inferred from the whole of the evidence that the respondent was fond of his job and took his responsibilities seriously. In support of that conclusion, his Honour referred to evidence that on several occasions the respondent had brought to the attention of management problems that he had had with the truck's handling, and had stated what he thought to be the reasons.

41 Counsel for the appellant argued that, because of the respondent's experience, knowledge and competence, there was no need for him to receive further instruction. Plainly it was open to the learned trial judge to take the opposite view, especially in view of the evidence as to the speeds at which the respondent routinely travelled.

42 Counsel for the appellant made submissions as to its knowledge and information as to the respondent's speeds. He pointed out that the evidence was that Mr Cox could have seen the speedometer, but not that he looked at it. However his Honour was entitled to take into account the evidence that Mr Cox was in the truck to evaluate the respondent's driving, and the obvious fact that speed is an important aspect of the driving of a log truck. Criticism was made of his Honour's reliance on the Tripmaster system. Correlating the data recorded by that system to particular stretches of roadway could well have been a tedious and difficult process, but in my view it is a process that could reasonably have been undertaken from time to time.

43 Counsel for the appellant relied on arguments that the respondent had complete authority to determine the height and distribution of his load, as well as his speed. In my view, it is in just such a situation that training has an important role. This argument also overlooks the evidence as to the instructions given to the respondent in relation to the use of the air pressure gauge during loading.

44 The conclusions reached by the learned trial judge as to the appellant's failure to give the respondent further training, instruction and warnings were plainly open to him on the evidence. When assessing the likely impact of further training or instruction, his Honour had the advantage of having seen the respondent in the witness box. In my view his conclusions as to this particular of negligence, and the reasoning on which they were based were plainly correct. Ground 3 must fail.

Grounds 2, 4 and 5 - Weight given to relevant factors

45 I will deal with these three grounds together because they all raise issues as to the weight given by the learned trial judge to relevant factors. Ground 2 relates to the load measuring system. Ground 4 relates to the relative weighting of the appellant's negligence and that of the respondent. Ground 5 relates to the weight given to the respondent's contributory negligence. All of these grounds relate ultimately to the contention that the reduction of 20 per cent for contributory negligence should have been greater. The three grounds of appeal read as follows:

"2 His Honour gave too much weight to the lack of precision of the load measuring system as a factor that was causative of the accident, having regard to the fact that any overloading of the front bunk at the time of the accident was not proximately caused by any lack of precision in that device but by the Plaintiff's failure to correct the load when he knew that the front bunk was overloaded, it being entirely within his power to correct that situation before he commenced his journey."

"4 His Honour focussed too much on the duty of care owned by the Defendant to the Plaintiff and not sufficiently on the conduct of the Plaintiff. In particular his Honour failed to give sufficient weight to the fact that the plaintiff's conduct in failing to ensure that his truck was properly loaded, and in travelling at the speed that he did in the circumstances known to him, were the proximate causes of the accident whilst the breaches of duty attributed to the defendant were causatively much more remote from the accident.

5 His Honour did not give sufficient weight to the cumulative effect of the Plaintiff's conduct including:

(a) his failure to take any steps to adjust the load;

(b) his failure to do anything to investigate the altered handling of the truck;

(c) his failure to modify his manner of driving to any extent at all; and

in the prevailing circumstances identified by his Honour (Reasons, par [195]) and having regard to the plaintiff's knowledge that there was something unusual about the load and that there was something unusual about the handling of the truck."

46 The decision to reduce the respondent's damages by 20 per cent was made pursuant to the Wrongs Act 1954, s4(1). That subsection required the learned trial judge to reduce the damages "to such extent up to 100 per cent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage". A decision under that subsection is a discretionary decision to which the Supreme Court Civil Procedure Act 1932, s45(1), applies: McKinlay v Reading [1977] Tas SR 7 at 15; Les Walkden Enterprises Pty Ltd v Menzie [2001] TASSC 140 at par[45]; Direen v Coad [2005] TASSC 122. Section 45(1) limits the circumstances in which appeals from discretionary decisions can succeed. It reads as follows:

"(1) A Full Court, on the hearing of any appeal from any judgment, order, or other determination (whether final or otherwise) of a judge, shall not reverse or vary any adjudication of the judge which is, or purports to be, only the exercise of a discretion which the judge was entitled by law to exercise, unless it appears to the Full Court that -

(a) the judge has, in fact, declined or failed to exercise the discretion;

(b) the judge has proceeded on a wrong principle or otherwise contrary to law, or on irrelevant or insufficient materials, or has misapprehended the facts or has failed to consider any material fact;

(c) the adjudication is founded wholly or in part on an erroneous finding of fact or an erroneous determination in point of law; or

(d) by reason of further evidence received by the Full Court in exercise of the powers conferred by section 48, or some special circumstance, the adjudication should be reversed or varied."

47 Section 45(1) does not confer a general discretion to reverse or vary a discretionary decision on the basis of the Full Court's views as to what is reasonable and just, nor to do so whenever the Full Court thinks that it would have been better to have given more weight or less weight to a particular factor. From time to time there are cases in which the weight given to a particular factor, or the lack of weight given to a particular factor, indicates that the primary judge has "proceeded on a wrong principle" within the meaning of s45(1)(b). Unless that sort of error, or some other specific error within the scope of s45(1), can be identified, an appeal from a discretionary decision cannot succeed: Norris v McGeachy [2010] TASFC 4.

48 Grounds 2, 4 and 5 do not involve any suggestion that there has been an error within the scope of s45(1), except perhaps a suggestion that the learned trial judge proceeded on a wrong principle by attaching too much or too little weight to a particular factor or factors.

49 In Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493 - 494, the High Court said:

"A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed."

50 For about nine years prior to the date of the accident, the respondent's work consisted entirely of driving log trucks. About 70 per cent of his trips involved negotiating the bends at Plenty. He had been driving the truck in question for over four months, making three return trips per day between Tarraleah and Boyer. He gave evidence that, in driving through the bends at Plenty, his speed, selected gear, and line taken were consistent from one occasion to the next. That evidence was accepted. On every previous journey he had successfully negotiated the bend in question. On the occasion in question, he was unable to do so. Something must have been different. According to the findings of the learned trial judge, the things that made a difference were the elevation of the suspension ride height by Mr Pearton, and the overloading of the front bunk.

51 As I have said, the appellant contends that its negligence in failing to have had in place a safe load measuring system did not materially contribute to the accident. There was evidence to the effect that, as log trucks go, the truck in question had a low tare weight, and a low SRT. That is to say, it was more prone to roll over than most log trucks. The learned trial judge made findings, which are unchallenged, that its total load was greater than 26.2 tonnes, and that a disproportionate amount of that load, of the order of two to four tonnes, was borne on the front bunk. That was one factor that must have made a material difference to the height of the centre of gravity of the load. The other such factor was the elevation of the suspension ride height by Mr Pearton. In my view it is neither possible nor necessary to say what difference each of those factors made to the SRT of the truck. However I think it must follow that the overloading of the front bunk, which resulted from the appellant's failure to have in place a safe loading system, materially contributed to the accident, and that his Honour was right to reach a conclusion to that effect.

52 That conclusion is also supported by the evidence, which his Honour accepted, that the rollover commenced from the drive axles, not from the rear of the trailer. It must follow that the overloading of the front bunk made a material contribution to the accident.

53 The following matters suggest that, for the purposes of apportioning blame, substantial weight should be given to the appellant's negligence in relation to the load measuring system:

•

The air pressure gauge gave a somewhat unreliable reading because the truck was loaded in the bush on uneven ground. There was evidence from the respondent, which the learned trial judge referred to at par[82] of his reasons, to the effect that the same load would give a different reading when the truck was moved.

•

The learned trial judge accepted evidence given by Mr Lambert, referred to at pars[91] and [190] of his reasons, to the effect that the respondent should have been told that the airbag pressure limit for loading the front bunk was 55kpa, not 60kpa.

•

The evidence revealed that, unlike all the appellant's other trucks, the truck driven by the respondent had not been fitted with the more reliable Lodec system, and that that was because that would have adversely affected its load carrying capacity. His Honour accepted that evidence at par[192] of his reasons. It was evidence of the appellant putting profits before safety.

54 In assessing the weight to be given to the appellant's negligence in relation to training, it was relevant that it operated a fleet of some 18 trucks, with some 30 or 40 drivers.

55 In assessing the weight to be given to the respondent's contributory negligence in failing to have his load adjusted before he set off on his journey, it was relevant to take into account his role in the system of work. He was not in a position to go against the wishes of the management. In determining the weight to be given to his negligence in driving too fast, it is relevant that there was evidence that the standard method for determining the advisory speeds that appear on signs is based on a scale that reflects passenger car comfort, not truck safety. Although the advisory speed sign suggested a maximum of 55Km/h, even Dr Prem's evidence suggested that travelling at 60Km/h would be quite safe.

56 The findings made by the learned trial judge as to "false feedback" are significant in relation to the apportionment of liability. At par[77] of his reasons, his Honour accepted unchallenged evidence from the respondent to the effect that, on the night of the accident, the truck behaved differently from previous occasions, in that "it did not veer or wander, it 'sat higher', it did not roll about as much, and was more rigid as with a steel spring suspension". Dr McLean gave evidence that the increase of the ride height would lead to false driver feedback. His Honour made a finding at par[78] of his reasons that the elevation of the ride height caused a feedback problem.

57 By failing to have in place a safe loading system, and by failing to give adequate driver training, the appellant breached its non-delegable duty to provide the respondent with a safe system of work. Its systemic failures were compounded by the negligence of Mr Pearton in adjusting the truck's suspension. Because systemic failures contributed very substantially to the accident, it was appropriate for the appellant to bear the bulk of the responsibility for it. The respondent's negligence in relation to the adjustment of the load, and in driving in the same manner and at the same speed as he always did, were of less significance. It was appropriate to take the false feedback into account in his favour in assessing his level of culpability. In those circumstances, it cannot be said that a reduction of 20 per cent indicates or suggests any error of principle. It has not been shown that the apportionment of liability by the learned trial judge involved any error within the scope of s45(1). Grounds 2, 4 and 5 must therefore fail.

59 I have had the opportunity to read the draft reasons of Blow J. I agree with those reasons and would also dismiss the appeal.