Contract comes first in modified truck case


One legal avenue for shifting liability over modifications looks to have been closed off

Contract comes first in modified truck case
Truck dealership's defence found wanting

A truck dealer’s move to shift liability to a subcontractor over a vehicle modification has come unstuck in the Supreme Court of Queensland.

Interest in the case turns on a fine point of law involving proportionate liability.

This hinged on dealer Zupps Southside’s defence against Hobbs Haulage that modifications made by subcontractor Trakka Pty Ltd meant Trakka was a "concurrent wrongdoer" under the Civil Liability Act.

It centres on a 2009 deal where Zupps supplied Hobbs a new truck for $240,583.42.

Under the contract, they agreed that the truck would be modified by extending the wheelbase and chassis, and by fitting a custom-made tray body and gates, with the cost included in the price.

Zupps subcontracted the modification work to Trakka for $36,410.

Zupps, which cross-claimed against Trakka on the basis of any finding against Zupps, argued that it was Trakka’s work that caused any possible loss to Hobbs.

It appears that the Zupps defence stumbled partly on it relying on 'duty of care', which was not the thrust of the Hobbs case, it being actually being about breach of contract between Hobbs and Zupps.

"The question as to whether the alleged failure to render services with due care and skill constituted a duty of care within the meaning of the Act was not dealt with in detail as the applicant [Hobbs] did not lead arguments in the negative," Carter Newell lawyers Rebecca Stevens and Allison Bailey say in their examination of the case.

"The applicant, for the purposes of the application, accepted that it was arguable that Trakka owed a duty of care to the applicant in negligence.

"Despite that concession, the applicant argued that Trakka was not a concurrent wrongdoer pursuant to the Act.

"The applicant pursued that argument on the basis that Trakka was not independently responsible for the applicant's damage.

"That is, the applicant argued that the respondent had not pleaded any acts or omissions on the respondent's part which are independent of those pleaded against Trakka.

"Therefore, the applicant argued, the same acts or omissions by the respondent and Trakka caused its loss."

Bailey would not be drawn when asked whether the case might see dealers advised to include subcontractors undertaking vehicle modifications in purchase deals.

The judge also had definite take on how liability should be apportioned in such cases, given the construction of the law.

"Mr Harding for Zupps submitted that the court should approach the interpretation of section 28 with a view to the conclusion that where there are parallel claims in contract or tort against a number of defendants the liability of each should be reduced, or where there are potential defendants, the liability of the defendants should be reduced by limitation under section 31, even if to achieve that result what is required is to construe section 28 so that the apportionable claim in view is one not brought by the plaintiff against any existing defendant," Justice David Jackson found.

"In my view, it’s not permissible to interpret the text or structure of the sections so as to achieve such a general aim."

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