Jefrin Pty Ltd v Wuyts [2005] NSWLC 11

Local Court of New South Wales

CITATION: Jefrin Pty Ltd v Wuyts [2005] NSWLC 11 JURISDICTION: Civil PARTIES: Jefrin Pty Ltd Tiffany Wuyts FILE NUMBER: 137 of 2004 PLACE OF HEARING: Ballina DATE OF DECISION: 06/03/2005 MAGISTRATE: CATCHWORDS: Property - inspection - contributory negligence LEGISLATION CITED: Jones v Bartlett 2000 HCA 56 CASES CITED: Drotem Pty Ltd v Manning NSW CA 16.11.2000 Stannus v Graham 1994 Aust Torts Reports REPRESENTATION: Colin Heazlewood instructed by Pogson Cronin David Cutler instructed by Abbott Tout ORDERS:

Reasons for Decision

1 The Plaintiff Company is suing the Defendant for damages which it alleges have arisen as a result of the Defendant's negligence. The Statement of Claim was issued for the amount of $36402.13. The Defendant has denied negligence, has contested the degree of the Plaintiff Company's loss and, as an alternative, has alleged contributory negligence on the part of the Plaintiff Company.

The Facts

2 The facts in the case are not essentially in dispute and may be stated as follows. In 2001 the Defendant purchased a property at Billinudgel, a rural location on the far north coast of New South Wales. Although it was not a large property, it had a creek running through it and access to the house from the public road involved the crossing of a wooden bridge. The bridge was about thirty metres from the front gate and about fifteen metres from the house. The bridge consisted of two large beams or girders which straddled the creek (the ends of the girders were encased in cement blocks) and cross planks which formed the deck of the bridge. The Defendant and her father indicated that they had crossed the bridge in vehicles on many occasions and had never had any cause for concern (the Defendant crossed it as often as six times a day in her 4WD vehicle). In addition, two furniture trucks had crossed the bridge when the Defendant had moved in and a cement truck had also crossed the bridge on an occasion when the Defendant was having some work done at or near her house. Neither she nor her father had noticed anything out of the ordinary on those occasions nor had visitors, including the drivers of the furniture and cement trucks, expressed any concerns about the fitness of the bridge to carry their vehicles. The Defendant had never undertaken a close inspection of the bridge nor had she engaged an engineer or some other person with appropriate expertise to do so. 3 The Defendant was having some work done at her property in May, 2003, and her father ordered eight metres of road base from Batson Sand & Gravel. That supplier engaged the Plaintiff Company to make the delivery. The Plaintiff Company is a private company through which David Caesar and his wife run their transport operations. On the afternoon of 8th May Mr. Caesar drove onto the Defendant's property. His recollection is that he had nine metres of road base on his truck. The total weight of Mr. Caesar's truck and load was a little in excess of 20 tonnes, perhaps as high as 21.5 tonnes. Mr. Wuyts met Mr. Caesar after he entered the property and directed him to the work area which was over the bridge. Mr. Caesar drove onto the bridge and was about three quarters of the way across when the bridge collapsed under him. The truck rolled onto its side and tumbled into the creek. The truck was extensively damaged as a result of the collapse.