Appeal Outcome: Special leave dismissed with costs by the High Court, 12 February 2010 s201/2009
New South Wales
Court of Appeal
CITATION: Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85 HEARING DATE(S): 23, 24,25 & 26 February 2009
JUDGMENT DATE:
27 July 2009JUDGMENT OF: Allsop P at 1; Beazley JA at 7; Giles JA at 78 DECISION: (1) Appeal allowed; (2) Set aside the judgment for the respondent and in lieu thereof judgment for the appellants; (3) Respondent to pay the appellants' costs of the trial and of the rehearing of the appeal; (4) Respondent to have a certificate under the Suitors Fund Act if otherwise qualified in respect of the rehearing of the appeal; (5) Subject to order (6), respondent to pay the appellants' costs of the previous appeal to this Court; (6) Liberty to the respondent to file written submissions within 14 days in relation to the costs of the previous appeal and a certificate under the Suitors Fund Act in respect of the appeal to the High Court; appellants to file responsive written submissions within a further 7 days. CATCHWORDS: TORTS - negligence - motor vehicle accident - unsealed road - plaintiff's vehicle went onto shoulder - approaching guide post - loose material on shoulder - plaintiff corrected and lost control - vehicle went off road and plaintiff injured - road under defendants' control - used as haul road for coal trucks - regularly graded - issue of perception of boundary between shoulder and hard running surface - degree of uniformity of colour - whether road surface deceptive - if deceptive whether causation of accident because of deceptiveness proved - use of photographs as evidence - evidence given by reference to photographs - departure from trial judge's findings - need for inference of greater probability than other available inferences. CASES CITED: Angel v Hawkesbury City Council [2008] NSWCA 130;
Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 243;
Beaton v McDivitt (1985) 13 NSWLR 134;
Blacktown City Council v Hocking [2008] NSWCA 144;
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969;
Bradshaw v McEwans Pty Ltd (High Court of Australia, 27 April 1951);
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FAC 1833; 117 FCR 424;
C Van der Lely NV v Bamfords Ltd [1963] RPC 61;
CSR Ltd v Della Maddalena [2007] HCA 1; (2006) 224 ALR ;
Costa v The Public Trustee of New South Wales [2008] NSWCA 223;
Flounders v Mitlar [2007] NSWCA 238; (2007) 49 MVR 53;
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118;
Gett v Tabet [2009] NSWCA 76; 254 ALR 504;
Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470;
Jackson v Lithgow City Council [2008] NSWCA 312;
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352;
Lujans v Yarrabee Coal Co Pty Ltd [2008] HCA 51
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- Case
- [2009] NSWCA 85
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the road surface was deceptive, specifically regarding the boundary between the shoulder and the hard running surface, due to a lack of uniformity in colour. If the road surface was found to be deceptive, the court also had to determine whether this deceptiveness was proven to be the cause of the accident. The court was required to consider the evidence, including photographs, and potentially depart from the trial judge's findings, applying the principle that an inference of greater probability than other available inferences must be drawn.
The Court of Appeal allowed the appeal, setting aside the judgment for the respondent and entering judgment for the appellants. The court found that the respondent had not proven that the road surface was deceptive in a way that caused the accident. The appellants were ordered to pay the respondent's costs of the trial and the rehearing of the appeal, with the respondent to have a certificate under the Suitors Fund Act in respect of the rehearing if qualified. Further directions were given regarding the costs of a previous appeal to the High Court and the respondent's eligibility for a certificate under the Suitors Fund Act for that appeal.
Orders
Orders of the court
(1) Appeal allowed; (2) Set aside the judgment for the respondent and in lieu thereof judgment for the appellants; (3) Respondent to pay the appellants' costs of the trial and of the rehearing of the appeal; (4) Respondent to have a certificate under the Suitors Fund Act if otherwise qualified in respect of the rehearing of the appeal; (5) Subject to order (6), respondent to pay the appellants' costs of the previous appeal to this Court; (6) Liberty to the respondent to file written submissions within 14 days in relation to the costs of the previous appeal and a certificate under the Suitors Fund Act in respect of the appeal to the High Court; appellants to file responsive written submissions within a further 7 days.
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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