Kollas v Scurrah

Case [2008] NSWCA 17
Appeal Outcome: Special leave refused with costs by the High Court -1 August 2008

New South Wales


Court of Appeal


CITATION: KOLLAS v SCURRAH [2008] NSWCA 17
HEARING DATE(S): 5 February 2008
 
JUDGMENT DATE: 
7 March 2008
JUDGMENT OF: Mason P at 1; Basten JA at 2; Bell JA at 23
DECISION: 1. The appeal is dismissed
2. The appellant is to pay the respondent’s costs
CATCHWORDS: TORT - Apportionment of liability - Breach of duty - Causation - Contributory Negligence - Duty of care - Moving in hazardous conditions - Moving in hazardous circumstances - Negligence - Oversize vehicle - Reasonable warning - Road Transport (Safety and Traffic Management (Road Rules) Regulation 1999 - What constitutes - Flashing lights - Hazard lights - WORDS AND PHRASES - "moving in hazardous circumstances" - "moving in hazardous conditions"
LEGISLATION CITED: Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999
Road Transport (Vehicle Registration) Regulation 1998
CASES CITED: State of New South Wales v Fahy [2007] HCA 20
PARTIES: William George KOLLAS (Appellant)
Kenneth Albert SCURRAH (Respondent)
FILE NUMBER(S): CA 40691/06
COUNSEL: B J Gross QC / D J Williams (Appellant)
D J Russell SC (Respondent)
SOLICITORS: Garden & Montgomerie Solicitors (Appellant)
Ferguson Lawyers (Respondent)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 114/02
LOWER COURT JUDICIAL OFFICER: Gibb DCJ
LOWER COURT DATE OF DECISION: 29 September 2006





                          CA 40691/06
                          DC 2940/04

                          MASON P
                          BASTEN JA
                          BELL JA

                          Friday 7 March 2008
William George KOLLAS v Kenneth Albert SCURRAH
Judgment

1 MASON P: I agree with Bell JA.

2 BASTEN JA: The primary question which arises in this appeal is whether the respondent, who was towing a heavy vehicle on a freeway, should have provided additional warning to draw attention to the fact that he was travelling at a speed well below that to be expected of such a vehicle in the circumstances. The question relates to an ‘additional warning’ because it was common ground that the sign on the back of the vehicle, which read

          “OVERSIZE
          TOWED VEHICLE”
      implicitly gave a warning that the vehicle was travelling slowly.

3 If it could be said that the respondent was negligent in that regard, it is also necessary to assess contributory negligence, which must exceed 50%, the appellant being the driver of a semitrailer, which collided with the rear of the towed vehicle in daylight hours, and in conditions of good visibility.

4 Both the circumstances and the issues have been fully explained by Bell JA and I gratefully adopt her Honour’s exposition. There is no doubt that the driver of the towed vehicle owed a duty of care to other road users, which included a duty to give reasonable warning that the vehicle was travelling slowly. In my view there was a breach of that duty in the circumstances and the breach contributed to the accident in a significant degree.


      Breach of duty

5 It is not in dispute that the speed at which the respondent’s vehicle…

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AGLC
Kollas v Scurrah [2008] NSWCA 17
Case
[2008] NSWCA 17
Decision Date

CaseChat Overview and Summary

The appeal in *Kollas v Scurrah* concerned the apportionment of liability arising from a collision involving an oversize vehicle. The appellant, Mr Kollas, was the driver of an oversize vehicle that had broken down on the road, and the respondent, Mr Scurrah, was the driver of a following vehicle that collided with the stationary oversize vehicle. The dispute centred on whether Mr Kollas had taken adequate steps to warn other road users of the hazard his vehicle presented.

The primary legal issues before the Court of Appeal were whether Mr Kollas had breached his duty of care to other road users by failing to adequately warn of the hazardous circumstances created by his broken-down oversize vehicle, and whether Mr Scurrah had been contributorily negligent. Specifically, the court considered what constituted a "reasonable warning" in the context of moving in "hazardous circumstances" or "hazardous conditions" under the *Road Transport (Safety and Traffic Management (Road Rules) Regulation 1999*, and whether the appellant's use of flashing lights or hazard lights met this standard.

The majority of the Court of Appeal (Bell JA, Mason P agreeing) found that Mr Kollas had breached his duty of care. They reasoned that the mere use of flashing lights was insufficient to constitute a reasonable warning given the size and nature of the vehicle and the circumstances of its breakdown on the road. The court held that a reasonable driver in Mr Kollas's position would have taken further precautions to alert oncoming traffic to the significant hazard. The majority dismissed the appeal, finding no error in the primary judge's assessment of liability.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The appeal is dismissed

2. The appellant is to pay the respondent's costs (Bell JA, Mason P agreeing, Basten JA dissenting)

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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