Damorange Pty Ltd v Jim Pearson Transport Pty Ltd [2010] NSWDC 174

New South Wales District Court

CITATION: Damorange Pty Ltd v Jim Pearson Transport Pty Ltd [2010] NSWDC 174

HEARING DATE(S): 2-4 March 2010; 7 April 2010

JUDGMENT DATE: 10 June 2010

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

(1) Judgment for the defendants. (2) Plaintiff to pay the defendants' costs. DECISION: (3) Judgment for the cross-claimant in the cross-claim in the sum of $21,563.56. (4) First and second cross-defendants pay the cross-claimant's costs. (5) The parties have leave to bring in Short Minutes of Order reflecting the mathematically agreed sum for interest on the cross-claim. (6) Liberty to restore concerning interest and costs.

CATCHWORDS: TORT - negligence - contributory negligence - truck collision on highway - PRACTICE & PROCEDURE - concurrent expert evidence

Plaintiff / First Cross-Defendant: Damorange Pty Ltd PARTIES: First Defendant / Cross-Claimant: JH1 Pty Ltd trading as Jim Pearson Transport Pty Ltd Second Defendant: Colin Mitchell Second Cross-Defendant: Ross Andrew Adamson

FILE NUMBER(S): 76 of 2009

COUNSEL: Plaintiff: Mr D R Benson Defendants: Mr N Polin

SOLICITORS: Plaintiff: Accent Legal Defendants: Lee & Lyons

Judgment

[1] At approximately 2.15 a.m. on 17 October 2007, the plaintiff's Kenworth prime mover, while travelling south along the F3 freeway near the Mandalong Road exit, was involved in a collision with the first defendant's Freightliner Argosy prime mover and its attached trailers.

[2] The plaintiff by statement of claim filed on 13 January 2009 brings proceedings for damages for the repair of the plaintiff's prime mover and trailer ($200,357.11) and report and police fees ($2,136.30) totaling $202,493.41. The second defendant is an employee of the first defendant, and the driver of the subject vehicle. Quantum is not in dispute for either the claim or the cross-claim. Only the issue of liability is raised by the defendants. The first defendant brought a cross-claim (filed on 19 November 2009) for $26,954.45 and an unspecified sum for survey fees for damage to the first defendant's vehicle (about which I did not hear further during the trial).