Ross-Sampson and Anor v Crawley [2003] NSWCA 335

New South Wales Court of Appeal

CITATION : Ross-Sampson and Anor v Crawley [2003] NSWCA 335 HEARING DATE(S) : 12 November 2003 JUDGMENT DATE : 5 December 2003

JUDGMENT OF : Meagher JA at 1; Handley JA at 2; Wood CJatCL at 3 DECISION : 1. Appeal allowed and the judgment in favour of the plaintiff, for damages to be assessed, set aside; 2. Judgment entered for the defendants; 3. The respondent is to pay the appellants' costs of the proceedings and of the appeal, and to have a certificate under the Suitors Fund Act.

CATCHWORDS : Appeal against liability - Respondent injured in motorcycle accident - trial Judge's evaluation of the evidence - whether evidence sufficient to establish breach of duty of care owed by first appellant. CASES CITED : Abalos v Australian Postal Commission (1990) 171 CLR 167 Devries v Australian National Railways Commission (1993) 177 CLR 472 Darren Ross-Sampson PARTIES : Darrell Ross-Sampson Phillip Mark Crawley FILE NUMBER(S) : CA 40792/02 COUNSEL : JD Hislop QC with JP Guihot (A) B Donovan QC with P Beale (R) SOLICITORS : Hunt & Hunt Lawyers (A) Conditsis and Associates (R)

LOWER COURT District Court JURISDICTION : LOWER COURT 133/02 FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER :

- 20 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40792/02

MEAGHER JA HANDLEY JA WOOD CJ at CL

Friday 5 December 2003 Ross-Sampson & Anor v Crawley Judgment 1 MEAGHER JA: I agree with Wood CJ at CL. 2 HANDLEY JA: I agree with Wood CJ at CL. 3 WOOD CJ at CL: The appellants appeal from the decision of her Honour Judge Sidis, following the grant of leave given by this Court on 19 May 2003. The proceedings before her Honour related to the respondent's claim for damages in respect of injuries, which he sustained in a motor cycle accident, on 14 March 1998. The question of liability, which was found adversely to the appellants, was determined as a preliminary and separate issue. Damages have yet to be assessed, awaiting the outcome of this appeal. 4 At about 1:50 PM on 14 March 1998, the respondent was riding a 750 cc Kawasaki motorcycle in a southerly direction along Wiseman's Ferry Road, Somersby. He was being followed by the first appellant, who was driving a Holden Commodore that belonged to his father, the second appellant. The road was a winding bitumen surface roadway with a single lane in each direction. The speed limit in the area was 80 kph, although there was a 55 kph advisory speed sign immediately before the right hand bend upon which the respondent came to grief.