Consequences of letting off the hand brake! Apportioning damages under competing legislative regimes

Edward Van Der Veer was driving his motor home along the Burnett Highway, north of Brisbane when he broke down and called Claytons Towing Service Pty Ltd (Claytons Towing) for assistance. (Anderson v Claytons Towing Service Pty Ltd [2026] QSC 26).

Having ascertained that the motorhome could not be driven further, the Plaintiff and Mr Van Der Veer agreed it should be towed to a mechanic for repair. Before the Plaintiff climbed under the vehicle to hook it up to the tow truck, he explicitly instructed Mr Van Der Veer not to release the hand brake. Despite this, after the Plaintiff had climbed under the vehicle, Mr Van Der Veer released the handbrake, enabling the vehicle to roll forward over the Plaintiff, causing severe crush injuries to his chest and abdomen.

Claytons Towing was found liable on the basis that its Safe Work Method Statement required the use of wheel chocks or the application of the handbrake, when it ought to have insisted on both being used at the same time (i.e. mandatory concurrent controls).

The Transport Accident Commission (TAC) (as the compulsory third party insurer of Mr Van Der Meer) was found liable in relation to Mr Van Der Meer releasing the hand brake.

The Court found that the accident could not have occurred without both the defective of system of work and the release of the hand brake. As such, the towing company and the TAC were found equally liable for the incident.

Liability having been established against Claytons Towing under the Workers Compensation and Rehabilitation Act (Qld) (2003) (WCRA), damages against the employer were to be assessed according to the relevant provisions of the WCRA. It also meant that damages against the TAC were to be assessed at common law.

The difference in the heads of damage available under the two separate regimes resulted in a damages assessment against Claytons Towing under the WCRA at just under $1.1 million (after deducting the refund owed under the WCRA), and against the TAC at $2.517 million.

Despite the 50% apportionment finding, because the towing company was not liable for certain heads of damage available against the TAC at common law, the Court ultimately apportioned $546,175 to the towing company (50% of the WCRA damages), with the remaining $1,970,874 payable by the TAC.

When assessing quantum in claims involving competing statutory regimes, or the common law and a statutory regime such as here, it is important to accurately quantify the damages that will be payable by each defendant when assessing each parties’ exposure to the claim.