ROYAL v SMURTHWAITE [2007] NSWCA 76

Appeal Outcome: Appeal allowed - Roads and Traffic Authority v Royal [2008] HCA 19 - 14 May 2008

New South Wales Court of Appeal

CITATION: ROYAL v SMURTHWAITE [2007] NSWCA 76

HEARING DATE(S): 6 and 7 February 2007

JUDGMENT DATE: 4 April 2007

JUDGMENT OF: Santow JA at 1; Tobias JA at 104; Basten JA at 105

DECISION: (1) Appeal allowed in part; (2) (a) Set aside the order of the trial judge dismissing the appellant's cross-claim against the RTA, and; (b) In lieu thereof, order that the RTA pay the appellant one-third of the judgment entered against him in favour of the first respondent; (3) Set aside the costs order made in the District Court and in lieu thereof order that; (a) the appellant pay the first respondent's costs of the trial and of the appeal; (b) the RTA pay to the appellant; (i) one-third of the costs payable by the appellant under para (a) above; (ii) the appellant's costs of the trial relating to his cross-claim against the RTA; (4) Order that -; (a) the appellant pay two-thirds of the first respondent's costs of the appeal, and ; (b) the RTA pay one-third of the first respondent's costs of the appeal.

CATCHWORDS: TORT – Contributory negligence – liability of RTA for design of highway intersection which had resulted in a number of accidents – collision between two cars at intersection where driver of one was held to be negligent with contributory negligence on the part of the other driver – no interference with that apportionment – RTA liable for defective design in conjunction with primarily liable driver

LEGISLATION CITED: Motor Accidents Act 1988 (NSW), s 45 Motor Accident Compensation Act 1999 (NSW), ss 3, 80, 83, 123, 128, 129, Ch 4 Pt 4.3, Ch 5

Almeida v Universal Dye Works Pty Ltd (No. 2) [2001] NSWCA 156 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Brodie v Singleton Shire Council (2001) 106 CLR 512 Chapman v Hearse (1961) 106 CLR 112 Commissioner of Main Roads v Jones (2005) 215 ALJR 418 Ghunaim v Bart [2004] NSWCA 28 Gould v Vaggelas (1983-85) 157 CLR 215 Griffiths v Kerkemeyer (1977) 139 CLR 161 CASES CITED: Haber v Walker [1962] VR 339 Herning v GWS Machinery Pty Ltd [2005] NSWCA 263 Herning v GWS Machinery Pty Ltd [No. 2] NSWCA 375 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Reeves v Metropolitan Police Commissioner [1999] 3 All ER 897 Sandersoon v Blyth Theatre Co [1903] 2 KB 533 Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 Watts v Turpin (1999) 21 WAR 402 Wilson v McLeay (1961) 106 CLR 523