Mayne Nickless Ltd t/as Mayne Nickless Logistics v D Symen & Anor [2001] NSWCA 292

New South Wales Court of Appeal

CITATION : Mayne Nickless Ltd t/as Mayne Nickless Logistics v D Symen & Anor [2001] NSWCA 292 FILE NUMBER(S) : CA 41009/00 HEARING DATE(S) : 03/09/01 JUDGMENT DATE : 14 September 2001

PARTIES : Mayne Nickless Ltd t/as Mayne Nickless Logistics v Darius Symen & AMP General Insurance Ltd JUDGMENT OF : Mason P at 1; Ipp AJA at 2; Sperling J at 37

LOWER COURT JURISDICTION : District Court LOWER COURT 8076/98 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER :

J Hislop QC/R Tonner (Appellant) COUNSEL : M Pesman (Respondent 1) C O'Connor QC/P Frame (Respondent 2) Moray & Agnew (Appellant) SOLICITORS : Schrader & Associates (Respondent 1) Creagh & Creagh (Respondent 2) CATCHWORDS : MOTOR VEHICLES - "Defect in the vehicle" - whether Motor Accidents Act 1988 applicable - loading and offloading goods - whether strap attaching ramp to trailer was part of vehicle - whether defect in strap constituted defect in vehicle - appeal and cross appeal allowed. D Motor Accidents Act 1988 LEGISLATION CITED : Motor Accidents Amendment Act 1995 Workers Compensation Act 1987 AMP General Insurance Ltd v Mayne Nickless (2000) 50 NSWLR 61 Zurich Australian Insurance Limited v CSR Limited [2001] NSWCA 261 CASES CITED: James Nimmo & Company Limited v Connell [1924] AC 593 Walsh v Whiteley (1888) 21 QBD 371 Metcalf v The Great Boulder Proprietary Goldmines Limited (1906) 3 CLR 543 DECISION : (1) The appeal and cross appeal be allowed (2) The verdict and judgment for the first respondent against the appellant be set aside and in lieu thereof there be a verdict for the first respondent against the appellant in the sum of $512,090 plus costs and judgment in the sum of $446,812 plus costs (taking into account the deduction of workers compensation payments of $65,278) (3) The judgment for the second respondent on the appellant's cross claim be set aside and in lieu thereof there be judgment for the appellant against the second respondent in the sum of $512,090 together with all costs payable by the appellant to the first respondent in respect of the District Court proceedings, and all costs incurred by the appellant in the defence by it of the District Court proceedings (4) The second respondent to pay the costs of the appellant and the first respondent relating to the appeal and cross appeal (5) No interest shall be payable on the balance of the judgment owing to the first respondent (namely, $24,840), provided that the balance is paid within 28 days from the date of this order (6) There be liberty to apply within 28 days from date hereof in regard to the amount or effect of the workers compensation payments on any of the orders made.