Yeats v Nominal Defendant & Anor

NEW SOUTH WALES COURT OF APPEAL

CITATION:    Yeats v Nominal Defendant & Anor [2004]  NSWCA 259

FILE NUMBER(S):
40416/03

HEARING DATE(S):             28/06/04

JUDGMENT DATE:               05/08/2004

PARTIES:
APPELLANT
Garry Neil Yeats
FIRST RESPONDENT
Nominal Defendant
SECOND RESPONDENT
Roads & Traffic Authority of New South Wales

JUDGMENT OF:      Mason P Beazley JA Cripps AJA   

LOWER COURT JURISDICTION:             Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):        20681/00

LOWER COURT JUDICIAL OFFICER:   Master Malpass

COUNSEL:
APPELLANT
Mr M J Cranitch SC with Mr C M Egan
FIRST RESPONDENT
Mr W M Fitzsimmons
SECOND RESPONDENT
Mr R W Seton

SOLICITORS:
APPELLANT
Beilby Poulden Costello
FIRST RESPONDENT
David McLachlan
SECOND RESPONDENT
McCabe Terrill

CATCHWORDS:
Negligence - Semitrailer turned over at roundabout - Unidentified motor vehicle - Findings of the Master that there was no unidentified motor vehicle open on the evidence and adequate reasons given for rejecting the plaintiff's claim - Defective construction of the roundabout by the RTA not established and, in any event, no causal nexus was established between the construction of the roundabout and the accident.

LEGISLATION CITED:

DECISION:
1. Appeal dismissed. 2. The appellant to pay the costs of the respondents.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40416/03

Mason P
Beazley JA
Cripps AJA

Thursday 5 August 2004

YEATS v NOMINAL DEFENDANT

Judgment

1. MASON P:  I agree with Cripps AJA

2. BEAZLEY JA:   I agree with Cripps AJA

3. CRIPPS AJA:     On 7 January 1998 at approximately 1am the appellant was injured when a semitrailer being driven by him in a southerly direction on the New England Highway overturned just south of the northern Armidale roundabout.

4. The traffic arrangements at the roundabout comprised two lanes at the northern entrance, two lanes within the roundabout and two lanes at the southern exit.  The roundabout had a centre island approximately 48m in diameter and each lane within the roundabout was approximately 4.7m wide.  The length of the semitrailer and prime mover was about 18m.

5. At trial the appellant’s case was that he had entered the roundabout and was crossing from the near side lane to the off side lane - the better to cope with the curve of the roundabout - when another motor vehicle the identity of which could not be established, attempted to overtake him on his right-hand side.  He said he first saw the lights of the vehicle when it had reached the middle of the semitrailer.  The appellant alleged that in order to avoid a collision with the unidentified vehicle he took evasive action moving first to the left and then to the right and applying his brakes forcibly.  He felt the load shift on the trailer.  He was unable to control his vehicle and it rolled over just outside the roundabout – the rear of the trailer, when it came to rest, was approximately 10m from the southern exit of the roundabout.

6. In his statement of claim the appellant alleged that the driver of the unidentified vehicle was negligent…