Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85

Appeal Outcome: Special leave dismissed with costs by the High Court, 12 February 2010 s201/2009

New South Wales Court of Appeal

CITATION: Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85

HEARING DATE(S): 23, 24,25 & 26 February 2009

JUDGMENT DATE: 27 July 2009

JUDGMENT OF: Allsop P at 1; Beazley JA at 7; Giles JA at 78

DECISION: (1) Appeal allowed; (2) Set aside the judgment for the respondent and in lieu thereof judgment for the appellants; (3) Respondent to pay the appellants' costs of the trial and of the rehearing of the appeal; (4) Respondent to have a certificate under the Suitors Fund Act if otherwise qualified in respect of the rehearing of the appeal; (5) Subject to order (6), respondent to pay the appellants' costs of the previous appeal to this Court; (6) Liberty to the respondent to file written submissions within 14 days in relation to the costs of the previous appeal and a certificate under the Suitors Fund Act in respect of the appeal to the High Court; appellants to file responsive written submissions within a further 7 days.

CATCHWORDS: TORTS - negligence - motor vehicle accident - unsealed road - plaintiff's vehicle went onto shoulder - approaching guide post - loose material on shoulder - plaintiff corrected and lost control - vehicle went off road and plaintiff injured - road under defendants' control - used as haul road for coal trucks - regularly graded - issue of perception of boundary between shoulder and hard running surface - degree of uniformity of colour - whether road surface deceptive - if deceptive whether causation of accident because of deceptiveness proved - use of photographs as evidence - evidence given by reference to photographs - departure from trial judge's findings - need for inference of greater probability than other available inferences.