Sullivan v Stefanidi - [2009] NSWCA 313

New South Wales

Court of Appeal

CITATION: Sullivan v Stefanidi [2009] NSWCA 313

HEARING DATE(S): 18 September 2009

JUDGMENT DATE:
2 October 2009

JUDGMENT OF: Ipp JA at 1; Basten JA at 2; Macfarlan JA at 18

DECISION: The appeal is dismissed with costs.

CATCHWORDS: TORTS - negligence - driver of semitrailer from which fuel leaked on to road held negligent in not stopping to check vehicle after hearing and feeling impact of rock or other object - obligation to give warning over two-way radio - causation issues considered

LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

CATEGORY: Principal judgment

CASES CITED: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; 135 CLR 616
Imbree v McNeilly [2008] HCA 40; 236 CLR 510.
Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Wyong Shire Council v Shirt [1980] HCA 12; (1979-1980) 146 CLR 40

PARTIES: Timothy Sullivan (Appellant)
Yuri Stefanidi (Respondent)

FILE NUMBER(S): CA 40404/08

COUNSEL: P Deakin QC/J Turnbull (Appellant)
M J Cranitch SC/A Campbell (Respondent)

SOLICITORS: Carroll & O'Dea (Appellant)
Gerard Malouf & Partners (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC1831/06

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 29 August 2008

CA 40404/08
DC 1831/06

IPP JA
BASTEN JA
MACFARLAN JA
FRIDAY 2 OCTOBER 2009

SULLIVAN v STEFANIDI

Judgment

1 IPP JA: I agree with Macfarlan JA.

2 BASTEN JA: The appeal in this matter should be dismissed with costs, for the reasons given by Macfarlan JA and for the additional reasons noted below.

3 The most significant challenge raised by the appellant to the findings on liability made by the primary judge (McLoughlin DCJ) was directed to the formulation of the duty of care. The trial judge held that on hearing a loud noise and feeling a bump, which appeared to come from underneath the vehicle, the appellant, exercising reasonable care for the safety of others on the road, would have stopped at the first available opportunity to inspect the underside of his vehicle to ascertain whether any damage had been occasioned: Judgment, p 8. The appellant’s failure to take that step was held to be negligent. The next step, which did not arise in the circumstances, but was a necessary element in the finding of causation, was that the appellant, having identified the significant hole in his fuel tank, which had been spilling diesel on to the roadway, should have taken immediate steps to notify other road users of the danger created by the spillage.

4 The appellant’s challenge to these findings was threefold. First, he submitted that the duty upheld by the trial judge operated differentially between truck drivers and other road users and was therefore inconsistent with the approach mandated by the High Court in Imbree v McNeilly [2008] HCA 40; 236 CLR…

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 Sullivan v Stefanidi

Details

AGLC: Sullivan v Stefanidi [2009] NSWCA 313
Case: [2009] NSWCA 313
Decision Date: 2 October 2009

CaseChat Overview and Summary

Sullivan (the appellant) appealed a decision of the District Court of New South Wales which found him negligent. The dispute arose from a motor vehicle accident where a semitrailer driven by Sullivan leaked fuel onto the road, creating a hazard. A subsequent vehicle, driven by Stefanidi (the respondent), collided with the leaking fuel, causing damage to the respondent's vehicle. The appeal was heard by Ipp, Basten, and Macfarlan JJA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the appellant was negligent in his driving and operation of the semitrailer, and if so, whether that negligence caused the damage suffered by the respondent. Specifically, the court considered whether the appellant had a duty to stop and check his vehicle after hearing and feeling an impact, and whether he had an obligation to warn other road users via his two-way radio. The court also examined the principles of causation in the context of negligence.

The Court of Appeal upheld the District Court's finding of negligence. Their Honours reasoned that the appellant ought to have appreciated the risk of damage to his vehicle and the potential hazard to other road users when he heard and felt an impact, consistent with a rock or other object striking the underside of his semitrailer. The failure to stop and inspect the vehicle, and to use his two-way radio to warn other drivers of the potential fuel leak, was found to be a breach of his duty of care. The court applied established principles of negligence, including the foreseeability of harm and the reasonable steps a driver should take to mitigate risks. Causation was established as the negligent conduct directly led to the fuel leaking onto the road, creating the hazard that caused the respondent's damage.

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

Orders

Orders of the court

The appeal is dismissed with costs.

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.

CITATION:	Sullivan v Stefanidi [2009] NSWCA 313
HEARING DATE(S):	18 September 2009
JUDGMENT DATE:	2 October 2009
JUDGMENT OF:	Ipp JA at 1; Basten JA at 2; Macfarlan JA at 18
DECISION:	The appeal is dismissed with costs.
CATCHWORDS:	TORTS - negligence - driver of semitrailer from which fuel leaked on to road held negligent in not stopping to check vehicle after hearing and feeling impact of rock or other object - obligation to give warning over two-way radio - causation issues considered
LEGISLATION CITED:	Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; 135 CLR 616 Imbree v McNeilly [2008] HCA 40; 236 CLR 510. Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 Wyong Shire Council v Shirt [1980] HCA 12; (1979-1980) 146 CLR 40
PARTIES:	Timothy Sullivan (Appellant) Yuri Stefanidi (Respondent)
FILE NUMBER(S):	CA 40404/08
COUNSEL:	P Deakin QC/J Turnbull (Appellant) M J Cranitch SC/A Campbell (Respondent)
SOLICITORS:	Carroll & O'Dea (Appellant) Gerard Malouf & Partners (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC1831/06
LOWER COURT JUDICIAL OFFICER:	McLoughlin DCJ
LOWER COURT DATE OF DECISION:	29 August 2008