Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298 Hearing dates: 7 – 9 July 2015 Date of orders: 30 September 2015 Decision date: 30 September 2015 Before: Ward JA at [1];
Emmett JA at [354];
Gleeson JA at [384]Decision: (1) Dismiss the appeal with costs.
(2) Dismiss the second respondent’s cross appeal with costs.
(3) Allow the first respondent’s cross appeal and set aside the finding made against him of contributory negligence.
(4) Order the appellant and the second respondent to pay to the first respondent the sum by which the damages awarded at first instance were reduced for his contributory negligence (and interest thereon at Court rates from the date of the judgment at first instance).
(5) Order the appellant and second respondent jointly and severally to pay the first respondent’s costs of these proceedings.
(6) Order the appellant to pay the second respondent’s costs of the appellant’s appeal in relation to the issue raised by grounds 24 and 25 of the appellant’s notice of appeal but otherwise as between the appellant and the second respondent there be no order as to costs.Catchwords: TORTS – negligence – motorcycle accident – where road recently resurfaced – liability – whether risk of harm reasonably foreseeable – whether risk of harm not insignificant – whether there were reasonable precautions which could have been taken – whether causation established
TORTS – contributory negligence - whether contributory negligence established
TORTS – negligence – multiple tortfeasors - apportionment – whether apportionment of liability unreasonable or plainly unjust
CONTRACTS – general principles - construction – proper construction of public liability insurance clauseLegislation Cited: Civil Liability Act 2002 (NSW), ss 42, 43A, 45, 5B, 5C, 5F, 5H
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Benic v New South Wales [2010] NSWSC 1039
Blacktown City Council v Hocking [2008] NSWCA 144 Bradshaw v McEwans (1951) 217 ALR 1
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Central Darling Shire Council v Greeney [2015] NSWCA 51
Doubleday v Kelly [2005] NSWCA 151
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Garzo v Liverpool/Campbelltown Christian Science School Ltd & Anor [2012] NSWCA 151
Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lu v Heinrich [2014] NSWCA 349
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90
Piening v Wanless [1968] HCA 7; (1968) 117 CLR 498
Pillinger v Lismore City Council [2014] NSWSC 447
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
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- Case
- [2015] NSWCA 298
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the appellant owed a duty of care to road users, whether the risk of harm from the resurfaced road was reasonably foreseeable and not insignificant, and whether the appellant had failed to take reasonable precautions. Further issues included whether the appellant's negligence caused Mr Pillinger's injuries, whether Mr Pillinger was contributorily negligent, and whether the apportionment of liability between multiple tortfeasors, if any, was unreasonable or plainly unjust. The construction of a public liability insurance clause was also a matter for the court.
The Court of Appeal dismissed the appellant's appeal, finding that the risk of harm from the resurfaced road was reasonably foreseeable and not insignificant, and that the appellant had failed to take reasonable precautions. The Court allowed Mr Pillinger's cross-appeal, setting aside the finding of contributory negligence against him. The Court reasoned that the appellant's negligence was the sole cause of Mr Pillinger's injuries. The Court also dismissed the second respondent's cross-appeal.
Consequently, the Court ordered that the appellant and the second respondent pay to Mr Pillinger the amount by which his damages were reduced at first instance due to contributory negligence, along with interest. The appellant and second respondent were also ordered to pay Mr Pillinger's costs of the appeal jointly and severally. The appellant was ordered to pay the second respondent's costs in relation to specific grounds of appeal, with no further order as to costs between the appellant and the second respondent otherwise.
Orders
Orders of the court
(1) Dismiss the appeal with costs.
(2) Dismiss the second respondent’s cross appeal with costs.
(3) Allow the first respondent’s cross appeal and set aside the finding made against him of contributory negligence.
(4) Order the appellant and the second respondent to pay to the first respondent the sum by which the damages awarded at first instance were reduced for his contributory negligence (and interest thereon at Court rates from the date of the judgment at first instance).
(5) Order the appellant and second respondent jointly and severally to pay the first respondent’s costs of these proceedings.
(6) Order the appellant to pay the second respondent’s costs of the appellant’s appeal in relation to the issue raised by grounds 24 and 25 of the appellant’s notice of appeal but otherwise as between the appellant and the second respondent there be no order as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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