GORDON MARTIN PTY LIMITED v STATE RAIL AUTHORITY OF NEW SOUTH WALES & ANOR [2008] NSWSC 343

New South Wales Supreme Court

CITATION : GORDON MARTIN PTY LIMITED v STATE RAIL AUTHORITY OF NEW SOUTH WALES & ANOR [2008] NSWSC 343 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 6 to 10 August, 13 to 16 August 2007

JUDGMENT DATE : 21 April 2008

JURISDICTION : Common Law

JUDGMENT OF : Hall J at 1

DECISION : (1) Judgment for the defendants on the Amended Statement of Claim. (2) Judgment for the cross-claimant (State Rail) against the plaintiff on the cross-claim in respect of the following amounts: (a) An amount of $25,437.21 in respect of the cross-claimant's "bussing claim"; (b) An amount of $949,974.08 in respect of the repairs to the Xplorer rail car EA2504; (c) Interest in accordance with the provisions of the Uniform Civil Procedure Rules; (3) I direct the parties to lodge short minutes of orders to give effect to the judgment in accordance with paragraph (2) above; (4) I will re-list the proceedings on a date to be fixed for the purpose of hearing submissions on costs in the event that the parties are unable to agree upon the appropriate orders as to costs.

CATCHWORDS : NEGLIGENCE - train/motor vehicle accident at railway crossing - breach of duty by train driver alleged - breach of duty with respect to design and construction of railway crossing alleged - whether truck driver breached Australian Road Rules - Rule 123(d) - and entered the railway crossing without stopping as required - finding that the truck driver in breach of duty entered the crossing without stopping - no breach of duty by train driver or defendants - on cross-claim by first defendant (State Rail) no contributory negligence - no apportionment of liability - DAMAGES - defendant disputing actual repair costs were reasonable - actual costs paid prima facie evidence of reasonableness of costs - evidentiary onus on a defendant - requirement to establish by evidence that costs paid were not within what is a reasonable range for such repairs - nature of the evidence required to establish costs paid were not reasonable costs - claimed benefit to State Rail of deferred expenditure not established