Roads and Traffic Authority v McGregor

Case [2005] NSWCA 388
CITATION:

Roads and Traffic Authority v McGregor & Anor [2005] NSWCA 388
HEARING DATE(S):

30/06/05
 
JUDGMENT DATE: 


11 November 2005

JUDGMENT OF:

McColl JA at 1; Campbell AJA at 2; Bell J at 176
DECISION:

Appeal allowed in part. Set aside the verdict and judgment against the appellant and in lieu thereof order verdict and judgment against the appellant in the sum of $178,941. Cross appeal allowed in part.Set aside the verdict and judgment against the cross-appellant and in lieu thereof order verdict and judgment against the cross-appellant in the sum of $178,941. Confirm the orders of Bishop DCJ as to apportionment. In default of agreement the parties to file written submissions as to costs of the appeal, cross appeal and trial within seven days.
CATCHWORDS:

Appeal - Negligence - Personal injury - Damaged pavement- Obvious danger in daylight not at time of injury - Apportionment - Damages - Construction of subs 15(3) of Civil Liability Act 2002.
LEGISLATION CITED:

Civil Liability Act 2002
Motor Accidents Act 1988
Motor Accidents (Amendment) Bill 1993
CASES CITED:

Wyong Shire Council v Shirt (1979-1980) 146 CLR 40
Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Maviglia v Mavaglia [1999] NSWCA 188
Fox v Percy [2003] 197 ALR 201
Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241
Van De Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Fairfield City Council v Cheryl Petra [2003] NSWCA 150
Oxley County Council v Macdonald & Ors [1999] NSWCA 126
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Ltd (2001) 53 NSWLR 626
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Coultin & Ors v Holcombe & Ors (1986) 162 CLR
Geoghan v D'Aubert [2002] NSWCA 260
Lennon v Gibson and Howes Ltd (1919) AC 709
McConachie v Pack [2004] NSWCA 148
PARTIES:

Roads and Traffic Authority - Appellant
Anne McGregor - First Respondent
Woollahra Municipal Council - Second Respondent

FILE NUMBER(S):

CA 40277/04
COUNSEL:

Mr G M Watson SC with Mr A J McInerney - Appellant
Mr M L Williams SC with Mr I A Newbrun - First Respondent
Mr D L Davies SC with Mr N J Polin - Second Respondent
SOLICITORS:

McCabe Terrill - Appellant
Carroll & O-Dea - First Respondent
Phillips Fox - Second Respondent
LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

2941/02

LOWER COURT JUDICIAL OFFICER:

Bishop DCJ



                          CA 40277/04
                          DC 2941/02

                          McCOLL JA
                          M W CAMPBELL AJA
                          BELL J

                          Friday 11 November 2005
ROADS & TRAFFIC AUTHORITY v ANNE McGREGOR & ANOR
Judgment

1 McCOLL JA: I agree with Campbell AJA.

2 CAMPBELL AJA:


      Introduction

      This is an appeal by the appellant (RTA) against a verdict and judgment awarded by Bishop DCJ in favour of the first respondent (Mrs McGregor) in the sum of $234,957 against the RTA and the second respondent, the Woollahra Municipal Council (the Council).

3 Cross claims resulted in the judgment being apportioned as to…

Continue reading Roads and Traffic Authority v McGregor

Sign in free to access the full text

Details
AGLC
Roads and Traffic Authority v McGregor [2005] NSWCA 388
Case
[2005] NSWCA 388
Decision Date

CaseChat Overview and Summary

The Roads and Traffic Authority (RTA) appealed a decision of the District Court of New South Wales, which had found the RTA liable for personal injuries sustained by Mr McGregor. Mr McGregor had suffered injuries when his motorcycle struck a damaged section of pavement. The RTA contended that the danger posed by the damaged pavement was obvious in daylight, suggesting Mr McGregor should have seen it.

The primary legal issues before the Court of Appeal were whether the RTA had breached its duty of care to Mr McGregor, and if so, whether Mr McGregor had contributed to his own injuries through contributory negligence. The court was also required to consider the application of section 15(3) of the *Civil Liability Act 2002* (NSW) in determining the apportionment of liability.

The Court of Appeal found that while the damaged pavement presented a hazard, its visibility was significantly reduced at the time of the incident due to the prevailing conditions, which differed from daylight. The court determined that the RTA had breached its duty of care by failing to adequately warn of or repair the defect. However, the court also found that Mr McGregor had been contributorily negligent, as he had not been exercising sufficient care in navigating the road. The court applied section 15(3) of the *Civil Liability Act 2002* (NSW) to apportion liability between the parties.

The appeal was allowed in part, with the original verdict and judgment set aside. A new judgment was entered against the RTA for $178,941. Mr McGregor's cross-appeal was also allowed in part, with a judgment entered against him in the same sum. The apportionment of damages determined at trial was confirmed. The parties were to make submissions regarding costs.

Orders

Orders of the court

Appeal allowed in part. Set aside the verdict and judgment against the appellant and in lieu thereof order verdict and judgment against the appellant in the sum of $178,941. Cross appeal allowed in part.Set aside the verdict and judgment against the cross-appellant and in lieu thereof order verdict and judgment against the cross-appellant in the sum of $178,941. Confirm the orders of Bishop DCJ as to apportionment. In default of agreement the parties to file written submissions as to costs of the appeal, cross appeal and trial within seven days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.