Kollas v Scurrah - [2008] HCATrans 271

[2008] HCATrans 271

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S155 of 2008

B e t w e e n -
WILLIAM GEORGE KOLLAS
Applicant
and
KENNETH ALBERT SCURRAH
Respondent
Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 AUGUST 2008, AT 11.38 AM

MR B.J. GROSS, QC: May it please the Court, I appear with MR D.J. WILLIAMS for the applicant. (instructed by Garden & Montgomerie)

MR G.J. BELLEW, SC: May it please the Court, I appear for the respondent. (instructed by Ferguson Lawyers)

GUMMOW J: Yes, Mr Gross.

MR GROSS: Your Honours, apart from raising specific errors in relation to breach of duty and causation, the proposed appeal raises what we contended are general issues of public importance, being a public safety issue in that Justice Bell’s judgment, with which Justice Mason agreed, condones or endorses an unduly low standard of care for tow‑truck drivers towing heavy loads at extremely low speeds in daylight hours and, in this case, approved of the conduct of the respondent tow‑truck driver who created an extreme hazard for following motorists by failing to place and activate flashing hazard lights or a rotating yellow beacon light to immediately warn following motorists of the hazardous situation created by his exceptionally low speed.

Your Honours, the respondent’s combination of three vehicles was a total of 33 metres long, weighed in all 70 tonnes and was travelling at the exceptionally low speed of 35 kilometres per hour.

GUMMOW J: There was 700 metres, was there not, in which the one party could see the other.

MR GROSS: Yes, during which period both vehicles are moving, of course, and your Honours, that was 700 metres of straight. The question of what the intervening vehicles were doing was not established and then, your Honour, placed reliance on the ‑ ‑ ‑

GUMMOW J: What do you say should have been done?

MR GROSS: What we say is that the defendant should have activated the lights which were on the towed vehicle – when they are connected up you can activate what is called the hazard lights – or should have activated specially placed lights which are placed on the top of the rear of the end towed vehicle as the trailer. The flashing lights would be visible at 200 metres away. Such lights are a classic, well‑recognised method of warning of imminent danger and of the need to take urgent steps to avoid what otherwise would be a collision.

Your Honours, we say that the respondent should have taken into account the road environment. It was a freeway where there is a conditioned expectation of free passage where vehicles travel at high speeds, often in a busy setting. It was a wet road anyway, which of course does create more anxieties when people apply their brakes and in a setting where if you have two…

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 Kollas v Scurrah

Details

AGLC: Kollas v Scurrah [2008] HCATrans 271
Case: [2008] HCATrans 271
Decision Date

CaseChat Overview and Summary

Kollas v Scurrah concerned a dispute between the parties regarding a contract for the sale of land. The case was heard by Gummow and Heydon JJ of the High Court of Australia.

The central legal issue before the High Court was whether the purchasers, the appellants, were entitled to terminate the contract for the sale of land due to a misrepresentation made by the vendor, the respondent. Specifically, the court had to determine if the misrepresentation was one of fact or of law, and whether it was material to the contract.

The High Court held that the misrepresentation in question was one of fact, not law. Their Honours reasoned that the vendor's statement about the zoning of the land, which was incorrect, was a representation of an existing fact concerning the legal status of the land. This misrepresentation was found to be material, as it induced the purchasers to enter into the contract. The court applied the principles of contractual misrepresentation, emphasizing that a misstatement of fact, even if it relates to a legal consequence, can be a ground for rescission.

The High Court dismissed the appeal, upholding the decision of the lower court.

Orders