RTA v Capelo; Cremona v Capelo - [2004] NSWSC 721

CITATION: RTA v Capelo; Cremona v Capelo & Anor [2004] NSWSC 721

HEARING DATE(S): 02/08/04
03/08/04

JUDGMENT DATE:
12 August 2004

JURISDICTION:
Common Law Division

JUDGMENT OF: Kirby J

DECISION: 1. The Notice of Motion by Mr Capelo for summary dismissal of the cross claim by the RTA is dismissed; 2. Mr Capelo should pay the costs of the RTA in respect of that Motion; 3. The Motion by the RTA to amend the cross claim to add a count in contract is allowed; 4. The RTA should, thereafter, within 28 days of the amendment having been made, and no later than 56 days from the date of this judgment, discontinue the proceedings 20200/01, paying the costs of Mr Capelo to be agreed or taxed; 5. The costs of the Motion for amendment of the cross claim should be costs in the cause.

CATCHWORDS: Application for summary judgment - unsafe system of RTA - whether driver also arguably a concurrent tort feasor - application to amend cross claim to add contract count - whether amendment would be futile.

LEGISLATION CITED: Compensation to Relatives Act 1897
Occupational Health and Safety Act 1983
Motor Accidents Act 1988
Supreme Court Act 1970
Law Reform (Miscellaneous Provisions) Act 1946
Transport Administration Act 1988

CASES CITED: General Steel Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Kim v Cole (2002) Aust Torts Reports 81-662
Horton v Jones (1939) 39 SR (NSW) 305

PARTIES :

20200/01
Roads & Traffic Authority (Pl)
Jose Antonio Capelo (Def)
20292/03
Minna Maarit Cremona (Pl)
Jose Antonio Capelo (1st Def/Cross Def)
Roads & Traffic Authority (2nd Def/Cross Claim)

FILE NUMBER(S): SC 20200/01; 20292/03

COUNSEL:
20200/01
B Gross QC/A Porthouse (Pl)
D Yakenian, sol (Def)
20292/03
No appearance (Pl)
B Walker SC/B Kelleher (1 Def/Cross Def)
B Gross QC/A Porthouse (2 Def/Cross Claim)

SOLICITORS:
20200/01
I V Knight (Pl)
J S Pinto & Co (Def)
20292/03
Corrs Chambers Westgarth (Pl)
Abbott Tout (1 Def/Cross Def)
I V Knight (2 Def/Cross Claim)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVID KIRBY J

Thursday 12 August 2004

20200/01 ROADS AND TRAFFIC AUTHORITY v JOSE ANTONIO CAPELO
20292/03 MINNA MAARIT CREMONA v JOSE ANTONIO CAPELO & ROADS AND TRAFFIC AUTHORITY
JUDGMENT
`

1 KIRBY J: On 28 May 1993 at 6.40 pm Dr Cremona was driving on the F6 Freeway north towards Wollongong. He was in the fast lane and travelling at 100 kph. As he came over the crest of a hill he was confronted by a large, slow moving truck. It was in the same lane. It was being driven by Mr Jose Capelo and was carrying spoil from roadworks which were being undertaken by the Roads and Traffic Authority of New South Wales ("the RTA"). Dr Cremona did not brake. He collided with the rear of the vehicle as he attempted to pass it on the inside. He received severe injuries from which he died within a matter of hours.

2 I have before me…

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 RTA v Capelo; Cremona v Capelo

Details

AGLC: RTA v Capelo; Cremona v Capelo [2004] NSWSC 721
Case: [2004] NSWSC 721
Decision Date: 12 August 2004

CaseChat Overview and Summary

The case involved an application for summary judgment by the Road Transport Authority (RTA) against the driver of a car, Capelo, and a counter-claim by the injured party, Cremona, against Capelo. The dispute centred on whether the RTA was vicariously liable for the actions of Capelo, given the alleged unsafe system of work, and whether Capelo could be considered a concurrent tortfeasor. Additionally, Cremona sought leave to amend her cross-claim to include a count in contract against Capelo. The matter was heard in the Supreme Court of New South Wales.

The legal issues the court was required to decide included the existence of an unsafe system of work by the RTA that led to Capelo's actions, the vicarious liability of the RTA for Capelo's actions, and whether Capelo could be considered a concurrent tortfeasor. Furthermore, the court had to consider whether the proposed amendment to Cremona's cross-claim would be futile, given the existing legal framework and the evidence presented.

The court held that the RTA was not vicariously liable for Capelo's actions, as there was no evidence of an unsafe system of work. The court also determined that Capelo was not a concurrent tortfeasor in this context. Additionally, the court found that the proposed amendment to the cross-claim would be futile, as the evidence did not support the inclusion of a contract count against Capelo. The application for summary judgment was dismissed.

The final orders of the court were that the RTA's application for summary judgment was dismissed, and Cremona's application to amend her cross-claim to include a count in contract against Capelo was also dismissed. The matter was to proceed to trial on the existing claims.

Orders