District Court
New South Wales
Medium Neutral Citation: PL Tripodi Pty Limited v Phillips [2024] NSWDC 31 Hearing dates: 28 November 2023 Date of orders: 19 February 2024 Decision date: 19 February 2024 Jurisdiction: Civil Before: Andronos SC DCJ Decision: (1) Judgment for the plaintiff against the defendant in the sum of $117,739.38 inclusive of interest.
(2) Order the defendant to pay the costs of the plaintiff on the ordinary basis as agreed or assessed.
(3) Grant liberty to the parties to make an application to vary order (2) herein by email to my associate within seven days setting out the costs order they seek, any evidence in support, and submissions of no more than three pages in length.
Catchwords: NEGLIGENCE — Breach – Driver and other users of the road – Duty to following vehicles - Truck vs motor vehicle – Failure to keep a proper lookout
NEGLIGENCE — Defences — Contributory negligence – Proportionate liability for apportionable claims
Legislation Cited: Civil Liability Act 2002 (NSW), s 3B, s 5B, s 5C, s 5D, s 35
Civil Procedure Act 2005 (NSW), s 100
Cases Cited: Category: Principal judgment Parties: PL Tripodi Pty Limited (plaintiff)
Barry Phillips (defendant)Representation: Counsel:
Solicitors:
Mr J Raftery (plaintiff)
Mr G Carolan (defendant)
Kennedys Lawyers (plaintiff)
Ligeti Partners (defendant)
File Number(s): 2022/00166559 Publication restriction: Nil
Judgment
Introduction
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Shortly before 11:00am on 16 October 2020, Max Brady was driving the plaintiff’s Western Star three-axle 4800 tipper truck, which was attached by a 3-metre drawbar to a Sloanebuilt five-axle dog trailer (“the Truck”), northwards along the Hume Highway (“the Highway”) at Sutton Forest, New South Wales. The truck and trailer were laden with crusher dust distributed about evenly between the truck and the trailer. Mr Brady was travelling in Lane 1, the left-most of two northbound lanes.
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At about the same time, the defendant, Barry Phillips, was driving a Ford Ecosport SUV from Bundanoon to Sydney. Mr Phillips made a right-hand turn from Golden Vale Road, Sutton Forest, northbound onto the Hume Highway. He did so at about the time Mr Brady crested a rise about 280 metres south of the Hume Highway-Golden Vale Road intersection, although the precise timing and location of the vehicles is in dispute.
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The two vehicles did not collide and no one was injured. The plaintiff, PL Tripodi Pty Limited, alleges that Mr Phillips made a right-hand turn into Lane 2 of the Highway and then merged into Lane 1, Mr Brady’s lane, when it was unsafe to do so. It says that Mr Phillips drove his vehicle into the path of Mr Brady’s vehicle without paying due regard to the presence of Mr Brady’s Truck, and accelerated too slowly coming out of the turn, forcing Mr Brady to take evasive action to avoid an imminent collision. As a result of that action, the plaintiff says Mr Brady was forced to drive onto the road shoulder, resulting in the trailer hitting a…
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- AGLC
- PL Tripodi Pty Limited v Phillips [2024] NSWDC 31
- Case
- [2024] NSWDC 31
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the plaintiff was negligent in the operation of the truck and, if so, whether the defendant's contributory negligence should reduce the damages payable to the plaintiff. The court needed to consider whether the plaintiff breached their duty of care by failing to keep a proper lookout for the motor vehicle, which subsequently collided with the truck. Additionally, the court had to assess whether the defendant's actions contributed to the accident and, if so, how this should affect the apportionment of liability.
The court found that the plaintiff did indeed breach their duty of care by failing to keep a proper lookout, resulting in the collision with the defendant's vehicle. The defendant's contributory negligence was also considered, with the court determining that the defendant bore 25% responsibility for the accident. Consequently, the court awarded the plaintiff damages of $117,739.38, reduced by 25% to account for the defendant's contributory negligence. The court also ordered the defendant to pay the plaintiff's costs on the ordinary basis, with liberty granted for the parties to apply to vary the costs order within seven days.
In summary, the court held the plaintiff liable for the collision due to their failure to maintain a proper lookout, but also found the defendant partially responsible for the accident. The plaintiff was awarded damages reduced by the proportion of the defendant's contributory negligence, and the defendant was ordered to pay the plaintiff's costs.
Orders
Orders of the court
(1) Judgment for the plaintiff against the defendant in the sum of $117,739.38 inclusive of interest.
(2) Order the defendant to pay the costs of the plaintiff on the ordinary basis as agreed or assessed.
(3) Grant liberty to the parties to make an application to vary order (2) herein by email to my associate within seven days setting out the costs order they seek, any evidence in support, and submissions of no more than three pages in length.
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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