Browning v Bitupave Limited [2008] NSWSC 19

New South Wales Supreme Court

CITATION : Browning v Bitupave Limited [2008] NSWSC 19

HEARING DATE(S) : 20 - 28 August 2007

JUDGMENT DATE : 31 January 2008

JUDGMENT OF : Harrison J

1. Verdict for the plaintiff against the first defendant for $2,140,000 (i.e. $2,400,000 less 15% for contributory negligence). 2. Order the first defendant to pay the plaintiff's costs. 3. Judgment for the second defendant on the plaintiff's claim. DECISION : 4. Dismiss the first cross-claim with costs on an indemnity basis. 5. Judgment for the second cross-claimant on the second cross-claim with costs on an indemnity basis. 6. Declare that the third cross-claimant is entitled to be indemnified by Boral Insurance Pty Limited in respect of all or any costs incurred or thrown away by the third cross-claimant in its defence of the plaintiff's claim and the first cross-claim and in its prosecution of the second cross-claim. 7. Order the third cross-defendant to pay the third cross-claimant's costs of the third cross-claim on an indemnity basis.

CATCHWORDS : NEGLIGENCE – motor vehicle accident – collision between sedan and semitrailer – plaintiff's sedan crosses onto wrong side of road at site of new roadwork – plaintiff loses control on gravel – road scheduled to be swept on day of accident - whether accident caused by fault of council or its contractor in placing or failing to remove excess gravel – adequacy of precautions and warning signs - CONTRIBUTORY NEGLIGENCE – speed limit of 40km/h – plaintiff travelling in excess of 60km/h immediately prior to loss of control – plaintiff 15% at fault - EVIDENCE – photographs taken at scene of accident – question of whether photographs depict presence of excess gravel or windrows – differing lay and expert opinions – extent to which court may interpret photographs when disagreement exists - CONTRACT – indemnity – obligation upon contractor to indemnify council secured by insurance – whether contractor assumed responsibility for liability of council to plaintiff even if caused by fault of council – council not at fault – issue discussed but unnecessary to decide - INSURANCE – Insurance Contracts Act s 48 – contractual obligation on contactor to effect insurance – whether council an assured within terms of policy