Benton v Scott's Refrigerated Freightways [2008] NSWCA 143

New South Wales Court of Appeal

CITATION: Benton v Scott's Refrigerated Freightways [2008] NSWCA 143

HEARING DATE(S): 3 April 2008

JUDGMENT DATE: 24 June 2008

JUDGMENT OF: Campbell JA at 1; Bell JA at 109; McDougall J at 110

DECISION: Appeal dismissed with costs.

CATCHWORDS: TORT – negligence – duty of care – professional driver injured while alighting from vehicle owned by Respondent – where Respondent was not the employer of Appellant driver – nature of duty of care owed by Respondent to Appellant – whether relevant difference between duty Respondent owed Appellant in its capacity as owner of the vehicle and the duty it would owe if it were the employer of the Appellant – whether trial judge erred in finding that duty had not been breached – whether trial judge gave sufficient reasons for judgment - PROCEDURE – pleadings – defective pleadings – statement of claim – Uniform Civil Procedure Rules 14.7 and 14.19 – material facts which must be stated for a claim under s 151Z(2)(c) and s 151Z(2)(d) Workers Compensation Act 1987 – necessity of pleading failure to pass permanent impairment threshold set by s 151H Workers Compensation Act – whether consensual abandonment of pleadings by the way the parties conducted their case - EVIDENCE – witnesses – whether effect of decision in Jones v Dunkel is to require or merely licence the drawing of inferences when a witness is not called - COSTS – consequences of failure of appeal on liability – whether deficiencies in defendant's pleading would make any difference to usual order as to costs

Evidence Act 1995 Law Reform (Miscellaneous Provisions) Act 1965 LEGISLATION CITED: Motor Accidents Compensation Act 1999 Uniform Civil Procedure Rules Workers Compensation Act 1987