Middleton v Erwin [2009] NSWSC 108

New South Wales Supreme Court

CITATION : Middleton v Erwin [2009] NSWSC 108

HEARING DATE(S) : 18, 23, 24 and 26 February 2009

JUDGMENT DATE : 5 March 2009

JUDGMENT OF : Harrison J

1. Verdict for the plaintiff against the first defendant. DECISION : 2. Judgment for the second defendant on the plaintiff's claim. 3. Dismiss the first cross claim. 4. I will hear the parties on the question of costs.

CATCHWORDS : NEGLIGENCE – motor vehicle accident – collision between semi-trailer and car when the steering in the semi-trailer failed without warning – accident occurred as the result of a mechanical failure - breach of duty properly to maintain the steering mechanism so as to keep it in a serviceable condition admitted – steering failure caused by wear in a pinch bolted universal joint – CAUSATION – whether defect discoverable upon ordinary reasonable inspection – whether proper service and maintenance would have revealed the defect in the absence of a specific problem with the steering mechanism – more than visual inspection required – proper service and maintenance would have revealed the defect – accident caused by breach – PRODUCT LIABILITY – whether manufacturer of semi-trailer liable for defective design of universal joint – alternative welded joint available – where no previous indication of problems with component – where steering mechanism in the semi-trailer recognised as the industry norm – interference with adjustment of the pinch bolt by third party – failure caused by wear resulting from incorrect adjustment – no obligation on manufacturer to produce a product that was accident proof or which would not wear out – no basis for conclusion that conformity by manufacturer to normal practice fell short of what reasonable care required – no breach of duty by manufacturer – TRADE PRACTICES - Trade Practices Act 1974 – ss 75AD and 75 AE – cross-claim for contribution by negligent owner of semi-trailer against manufacturer – cross-claim dismissed - no defect and loss related to workers' compensation under s 75AI.