PL Tripodi Pty Limited v Phillips

[2024] NSWDC 31

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:

Steve Calcagno v Norma Maree Dent [2015] NSWDC 308

Category:

Principal judgment

Parties:

PL Tripodi Pty Limited (plaintiff)
Barry Phillips (defendant)

Representation:

Counsel:
Mr J Raftery (plaintiff)
Mr G Carolan (defendant)

Solicitors:
Kennedys Lawyers (plaintiff)
Ligeti Partners (defendant)

File Number(s):

2022/00166559

Publication restriction:

Nil

Judgment

Introduction

1. 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.

2. 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.

3. 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…