Wagga Truck Towing Pty Limited v O'Toole; IAG Limited t/as NRMA Insurance v O'Toole [2011] NSWCA 191

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wagga Truck Towing Pty Limited v O'Toole; IAG Limited t/as NRMA Insurance v O'Toole [2011] NSWCA 191 Hearing dates: 28 June 2011 Decision date: 15 July 2011 Before: Giles JA at 1; Hodgson JA at 2; McColl JA at 53 Decision: (1) Wagga Towing's appeal dismissed. (2) NRMA's appeal against Mr O'Toole dismissed. (3) NRMA's appeal against Wagga Towing allowed, and: (a) Decision to apportion responsibility 70 per cent to NRMA and 30 per cent to Wagga Towing and any consequential order set aside. (b) Declare that the liability be apportioned as to 50 per cent to NRMA and 50 per cent to Wagga Towing. (c) Liberty to either party to apply to the District Court for any appropriate consequential order. (4) Wagga Towing and NRMA to pay Mr O'Toole's costs of both appeals (apportioned 50-50 between themselves). (5) Wagga Towing to pay one-third of NRMA's costs of both appeals. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORT - Negligence - Advice by truck towing company to truck owner to remove tail-shaft of truck - Direction by truck owner to assistant to remove tail-shaft - Assistant does so and truck moves causing injury to assistant - Whether duty of care in truck towing company, breached by failure to advise that removal of tail-shaft might disable the handbrake - Whether breach of duty of care by truck owner.