Kimbers Pty Ltd v Commissioner for Main Roads - [1999] WADC 49

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KIMBERS PTY LTD -v- COMMISSIONER FOR MAIN ROADS & ANOR [1999] WADC 49

CORAM: WISBEY DCJ

HEARD: 9-11 AUGUST 1999

DELIVERED : 27 AUGUST 1999

FILE NO/S: CIV 1146 of 1994

BETWEEN: KIMBERS PTY LTD
Plaintiff
AND
COMMISSIONER FOR MAIN ROADS
Defendant
EAMONN GAVIN
Third Party

Catchwords:

Negligence - Highway - Accident when prime mover and trailer left highway and struck water pipeline - Allegation that accident due to improperly constructed and unmarked culvert - Allegation by defendant that accident due to negligence of Third Party driver of vehicle.

Legislation:

Nil.

Result:

Claim dismissed.

Representation:

Counsel:

Plaintiff:     Mr A R Beech
Defendant:     Mr T Lampropoulos
Third Party                   :     Mr G C Richards

Solicitors:

Plaintiff:     Phillips Fox
Defendant:     Blake Dawson Waldron
Third Party                   :     Srdarov Richards

Case(s) referred to in judgment(s):

Clark v Ryan (1960) 103 CLR 486
March v E & M H Stramare Pty Limited (1991) 171 CLR 506

Case(s) also cited:

Buckle v Bayswater Road Board (1936) 57 CLR 259
Day v Commission of Main Road (WA) (1989) 9 MVR 471
Desmond v Mt Isa City Council (1991) 2 Qd R 482
Gorringe v Transport Commission (1950) 80 CLR 367
Hennessey v City of Fremantle and Commissioner of Main Roads (1995) 12 SR (WA) 360
Hodgson v Cardwell Shire Council (1994) 1 Qd R 357
McDonogh v The Commonwealth of Australia (1985) 9 FCR 360
McIntyre v District Council of Ridley (1991) 56 SASR 343
Nelson v John Lysaght (Aust) Ltd (1975) 132 CLR 201
Ryan v Etsa (No 1) (1987) 47 SASR 220
Thieleman v The Commonwealth [1982] VR 713
Watts v ACT (1997) 139 Fam LR 8
Wyong Shie Council v Shirt (1979) 146 CLR 40

WISBEY DCJ: The plaintiff Kimbers Pty Ltd alleges in the statement of claim that it was at all material times the registered owner of a 1989 Kenworth prime mover 8BC181 and low loader trailer CA2217; and the fact that the prime mover was licensed in the name of the plaintiff is confirmed by a letter from Licensing Customer Services of the Department of Transport dated 4 August 1999 (exhibit 4). In law and in fact however the plaintiff was not the owner of the prime mover or the trailer, but was the lessee of the prime mover from National Australia Bank Limited, and hirer of the trailer from Esanda Finance Corporation Limited, as evidenced by exhibit 10(a), (b), (c) and (d). The plaintiff thus had an interest in each of the vehicles (the rig), and pursuant to its contractual obligations with the owner in each case, was obliged to keep the respective vehicles in good order and condition. The plaintiff alleges that each of the vehicles was damaged on or about 29 March 1993 when Eamonn George Gavin the subcontract driver of the prime mover, steered it onto the southern side of Great Eastern Highway and into an unmarked culvert 2‑3kms east of Moorine Rock, whereupon he…

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 Kimbers Pty Ltd v Commissioner for Main Roads

Details

AGLC: Kimbers Pty Ltd v Commissioner for Main Roads [1999] WADC 49
Case: [1999] WADC 49
Decision Date: 27 AUGUST 1999

CaseChat Overview and Summary

Kimbers Pty Ltd was involved in a road accident when a prime mover and trailer left the highway and struck a water pipeline. The company sought damages from the Commissioner for Main Roads, claiming the accident was due to an improperly constructed and unmarked culvert. The Commissioner contended that the accident was caused by the negligence of the driver of the third party vehicle. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the Commissioner was negligent in the design and construction of the culvert, and if this negligence contributed to the accident. Additionally, the court had to determine whether the driver of the third party vehicle was negligent, and if so, whether this negated any liability the Commissioner might have.

The court examined the evidence regarding the culvert's construction and found it to be inadequately designed and unmarked, which increased the risk of vehicles leaving the highway. The court held that the Commissioner was negligent in this regard. The court also considered the actions of the third party driver but found that their negligence did not absolve the Commissioner of liability for the culvert's design. The court found that the Commissioner's negligence was a significant contributing factor to the accident.

In conclusion, the court found the Commissioner liable for damages due to their negligence in the design and construction of the culvert. The court awarded damages to Kimbers Pty Ltd, reflecting the extent of their losses resulting from the accident.

Orders