TURNER v BATTISTUZZI [2000] NSWSC 1237

New South Wales Supreme Court

CITATION : TURNER v BATTISTUZZI [2000] NSWSC 1237 FILE NUMBER(S) : SC NR 600063 of 1995 HEARING DATE(S) : 24 May 2000 to 29 May 2000 JUDGMENT DATE : 21 December 2000

Plaintiff: Raymond Edward Turner PARTIES : First Defendant: Mark Battistuzzi Second Defendant: Balranald Shire Council JUDGMENT OF : Hulme J at 1

Plaintiff: DA Wheelahan QC with GM Radburn COUNSEL : First Defendant: CP Crittle Second Defendant: DGT Nock SC Plaintiff: Parker & Kissane SOLICITORS : First Defendant: Burridge Harris & Flynn Second Defendant: Henry Davis York DECISION : Orders deferred

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NO: 600063/95 Thursday, 21 December 2000

HULME J Raymond TURNER v Mark BATTISTUZZI

JUDGMENT

HIS HONOUR:

1 On 21 February 1994 at about 6.00pm the Plaintiff was injured when a semi trailer he was driving ran into the back of another semi trailer driven by a Mr Simpson on a section of road in south-west New South Wales between Kyalite and Balranald. These two semi trailers were the last in a convoy of five carrying stock north from South Australia. In order, the other three vehicles were driven by a Mr Lewis, a Mr Clarke and a Mr Spencer. 2 The five vehicles had traversed the area of road where the accident occurred on the previous day heading to South Australia. There was nothing unusual about the road at that time. On the return journey at the scene of the accident, a dust cloud was created as the vehicles passed. The source of the dust was fill the Balranald Shire Council had placed on the shoulders of the road in the intervening period. It is clear from Council records of the work that the fill had not been watered or compacted during the course of this operation, nor had the surface been sealed in any way. By the time the trucks arrived the work was completed for the day and the only warning sign facing the trucks was one which said "Soft Shoulders" or the like. 3 There was an issue as to whether the bitumen surface had itself been the subject of work. I am not satisfied that it had been. Indeed, despite some evidence from Acting Inspector Ridley, the probabilities are it had not. I accept however that there was some significant quantity off dust on the western quarter of the bitumen surface. In places it may have been of, or the order of, the depth of the sole of a shoe, as Acting Inspector Ridley suggested. 4 Prior to trial Mr Lewis had died but the other drivers all gave evidence. Some had made statements previously and not all of the evidence and the contents of the statements are consistent. However the accounts which seem to me to be most significant are as follows