KENNEDY v ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES [1999] NSWCA 74

New South Wales Court of Appeal CITATION : KENNEDY v ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES [1999] NSWCA 74 FILE NUMBER(S) : CA 40904/97 HEARING DATE(S) : 24 March 1999 JUDGMENT DATE : 24 March 1999

PARTIES : Robert Neil Kennedy Roads and Traffic Authority of New South Wales JUDGMENT OF : Mason P at 29; Giles JA at 1; Fitzgerald JA at 30

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : CLD 12940/93 LOWER COURT JUDICIAL OFFICER : Hulme J

COUNSEL : Appellant - P C B Semmler QC & R F Wilkins Respondent - R S McIlwaine SC SOLICITORS : Appellant - Kingston & Swift, Nelson Bay (Young & Cooke, Sydney agent) Respondent - Ferguson Holz, Sydney CATCHWORDS : NEGLIGENCE - truck rollover - whether excessive speed - whether excessive speed contributed to rollover; DAMAGES - injury in truck rollover - assessment of percentage of a most extreme case. DECISION : Dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40904/97 SC 12940/93

MASON P GILES JA FITZGERALD JA

Wednesday 24 March 1999

KENNEDY v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES

JUDGMENT

1 GILES JA: The appellant, Mr Robert Kennedy, was employed as a driver by the respondent, the Roads and Traffic Authority of New South Wales. On 1 May 1992 the appellant was driving a tanker comprising a prime mover and trailer from the respondent's depot in Broken Hill to a work site some distance out of the city. The tanker was a little under half full of bitumen. When the unit was turning right from Bonanza Street into Patton Street on the outskirts of Broken Hill, the trailer overturned, pulling the prime mover with it. The appellant was injured.