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Browning v Bitupave Limited

Browning v Bitupave Limited

Case [2008] NSWSC 19 31 January 2008

Negligence

Contributory Negligence

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CITATION: Browning v Bitupave Limited [2008] NSWSC 19

HEARING DATE(S): 20 - 28 August 2007

JUDGMENT DATE :
31 January 2008

JUDGMENT OF: Harrison J

DECISION: 1. Verdict for the plaintiff against the first defendant for $2,140,000 (i.e. $2,400,000 less 15% for contributory negligence).
2. Order the first defendant to pay the plaintiff's costs.
3. Judgment for the second defendant on the plaintiff's claim.
4. Dismiss the first cross-claim with costs on an indemnity basis.
5. Judgment for the second cross-claimant on the second cross-claim with costs on an indemnity basis.
6. Declare that the third cross-claimant is entitled to be indemnified by Boral Insurance Pty Limited in respect of all or any costs incurred or thrown away by the third cross-claimant in its defence of the plaintiff's claim and the first cross-claim and in its prosecution of the second cross-claim.
7. Order the third cross-defendant to pay the third cross-claimant's costs of the third cross-claim on an indemnity basis.

CATCHWORDS: NEGLIGENCE – motor vehicle accident – collision between sedan and semitrailer – plaintiff’s sedan crosses onto wrong side of road at site of new roadwork – plaintiff loses control on gravel – road scheduled to be swept on day of accident - whether accident caused by fault of council or its contractor in placing or failing to remove excess gravel – adequacy of precautions and warning signs - CONTRIBUTORY NEGLIGENCE – speed limit of 40km/h – plaintiff travelling in excess of 60km/h immediately prior to loss of control – plaintiff 15% at fault - EVIDENCE – photographs taken at scene of accident – question of whether photographs depict presence of excess gravel or windrows – differing lay and expert opinions – extent to which court may interpret photographs when disagreement exists - CONTRACT – indemnity – obligation upon contractor to indemnify council secured by insurance – whether contractor assumed responsibility for liability of council to plaintiff even if caused by fault of council – council not at fault – issue discussed but unnecessary to decide - INSURANCE – Insurance Contracts Act s 48 – contractual obligation on contactor to effect insurance – whether council an assured within terms of policy

LEGISLATION CITED: Civil Liability Act 2002
Insurance Contracts Act 2004
Law Reform (Miscellaneous Provisions) Act 1946
Roads Act 1993

CATEGORY: Principal judgment

CASES CITED: Davis v Commissioner for Main Roads (1967-1968) 117 CLR 529
Jones v Dunkel (1959) 101 CLR 298
Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 233 ALR 200
Lipman Pty Ltd v McGregor & Ors [2004] NSWCA 6
National Vulcan Engineering Insurance Group Ltd v Pentax Pty Ltd [2004] NSWCA 218
Short & Anor v Barrett (New South Wales Court of Appeal, 5 October 1990, unreported)
State of NSW v Tempo Services Ltd [2004] NSWCA 4
Stillwell Trucks v McKay [2002] NSWCCA 292
Valkonen & Anor v Jennings Constructions Limited & Ors (1995) 184 LSJS 87

PARTIES: Annette Trudie Browning (Plaintiff)
Bitupave Limited t/as Boral Asphalt (First Defendant)
Cessnock City Council (Second Defendant)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Browning v Bitupave Limited

Details

AGLC: Browning v Bitupave Limited [2008] NSWSC 19
Case: [2008] NSWSC 19
Decision Date: 31 January 2008

CaseChat Overview and Summary

The plaintiff, Browning, sued Bitupave Limited for damages following a motor vehicle accident. The incident occurred when Browning's sedan collided with Bitupave's semitrailer, with the accident taking place at a site where roadwork was being carried out. Browning's sedan veered onto the wrong side of the road, where gravel had been left, causing the plaintiff to lose control. The road was scheduled to be swept on the day of the accident, but the sweeping had not yet occurred. The dispute centred on whether the accident was due to the council's or Bitupave's fault in placing or failing to remove excess gravel, and whether the measures taken, including warning signs, were adequate. The court also had to consider Browning's contributory negligence, with evidence suggesting the plaintiff was travelling at a speed in excess of 60km/h immediately before losing control.

The court needed to determine several legal issues. Firstly, was the accident caused by the council's or Bitupave's fault due to the placement or failure to remove excess gravel? Secondly, were the precautions and warning signs adequate to warn of the potential hazard? Thirdly, to what extent was Browning contributory negligent? The court also needed to interpret the evidence, particularly photographs taken at the accident scene, to determine whether they depicted the presence of excess gravel or windrows, given the conflicting opinions of lay and expert witnesses. Finally, the court had to consider the contractual obligations, including the indemnity clause whereby Bitupave agreed to indemnify the council, secured by insurance, and whether this meant Bitupave assumed responsibility for any liability to the plaintiff, even if caused by the council's fault.

The court found that the accident was not caused by the council's or Bitupave's fault, a finding that rendered the other issues moot. However, the court noted that Browning was 15% at fault due to excessive speed. The court held that the photographs could be interpreted by the court, even where there was disagreement among the experts, as long as the interpretation was not unreasonable. The court also found that Bitupave's obligation to indemnify the council included any liability arising from the council's own fault, and that the council was an assured within the terms of Bitupave's insurance policy. The court ordered Bitupave to pay Browning damages, reduced by 15% for contributory negligence.

Orders