Gary John Keenahan v Allen Bros Asphalt Limited [2001] NSWSC 279

New South Wales Supreme Court

CITATION : Gary John Keenahan v Allen Bros Asphalt Limited [2001] NSWSC 279 FILE NUMBER(S) : SC 20155/97 7-10/12/1999 HEARING DATE(S) : 15/12/1999 19-21/7/2000 24-27/7/2000 JUDGMENT DATE : 17 April 2001

PARTIES : Gary John Keenahan Allen Bros Asphalt Limited JUDGMENT OF : Dowd J at 1

COUNSEL : Mr M Holmes QC- Plaintiff Mr M Elkaim- Defendant SOLICITORS : Goldrick Farrell Mullan- Plaintiff Bartier Perry & Purcell- Defendant CATCHWORDS : Personal injury - Negligence - Paraplegia - Contributory negligence - Assessment of damages - Most extreme case - Domestic care - Recreational needs LEGISLATION CITED : Evidence Act 1995 Motor Accidents Act 1988 CASES CITED : Fox v Wood (1981) 148 CLR 438. Nominal Defendant v Gardikiotis (1996) 186 CLR 49. DECISION : 1. Verdict for the plaintiff in the plaintiff's action, and in the claim of contributory negligence; 2. Parties granted liberty to apply; 3. Costs reserved.

IN THE SUPREME COURT OF NEW SOUTH WALES

DOWD J

20155/97

17 April 2001

Gary John KEENAHAN v ALLEN BROS ASPHALT LIMITED

REASONS FOR JUDGMENT 1 DOWD J: The plaintiff was the driver of a prime mover, owned by the company he controlled, to which was attached a tanker of bitumen, owned by the defendant. On 19 January 1988, the plaintiff was catastrophically injured when the prime mover and trailer of bitumen both left the road and crashed at an S-bend over the Melbourne-Sydney railway line with which the Yass-Harden Road intersects. 2 The plaintiff, by amended Statement of Claim, sued the defendant for negligence for failing to repair and maintain the trailer, as the defendant had agreed with the company by whom the plaintiff was employed. Under the agreement, the company by whom the plaintiff was employed, had contracted with the defendant to carry bitumen an. The defendant undertook to properly repair the trailer which it owned. 3 The plaintiff contended that due to a mechanical malfunction, the brakes on the front offside axle locked, causing the trailer to become uncontrollable and run off the roadway, causing serious damage to the plaintiff. 4 The defendant denied negligence and pleaded contributory negligence. The claim arises under the transitional provisions of the Motor Accidents Act 1988.