RL & CA Woods Pty Ltd v Pacific National (Victoria) Ltd and Wayne Bruce Kuschert v Pacific National (Victoria) Ltd and Anor [2009] NSWCA 298

New South Wales Court of Appeal

CITATION: RL & CA Woods Pty Ltd v Pacific National (Victoria) Ltd and Wayne Bruce Kuschert v Pacific National (Victoria) Ltd and Anor [2009] NSWCA 298

HEARING DATE(S): 4 September 2009

JUDGMENT DATE: 4 November 2009

JUDGMENT OF: Allsop P at 1; Ipp JA at 19; Young JA at 160

1. Appellants' appeal against Pacific National: (a) The appeal in relation to Order 7 made by James J in SC 20061/2007 is allowed; DECISION: (b) Order 7 made by James J is set aside; and (c) Save as set out above, the appeal is dismissed with costs. 2. Appellants' appeal against the RTA is dismissed with costs.

CATCHWORDS: TORTS - negligence –collision between a truck and a train at a level crossing – whether the truck driver had a clear view in the direction of the train – whether the truck driver kept a proper look out – the evidence established that the truck driver had a clear view and failed to keep a proper look out - TORTS - negligence –collision between a truck and a train at a level crossing –whether the train drivers should have applied the brakes earlier – the evidence did not establish that there was a reason for the train drivers to think that the truck was a danger or that the truck was not going to give way when the train was 500 metres from the level crossing – the evidence did not establish that the train drivers should have realised that there was a possibility of a collision 350 metres from the level crossing - the train drivers did not breach their duty of care - TORTS - negligence- collision between a truck and a train at a level crossing – stand of trees on the side of the highway before level crossing- whether the RTA breached its duty by omitting to remove the stand of trees – whether the stand of trees interfered with the truck driver's ability to see the train and react earlier to the presence of the train – whether the stand of trees was a cause of the collision – it was not argued that the RTA had responsibility for removing the stand of trees -the evidence did not establish that the stand of trees was a cause of the accidentTORTS- negligence –collision between a truck and a train at a level crossing - whether the RTA was required to reduce the existing speed limit of the highway on the approach to the level crossing – whether the collision would have been avoided if the speed limit on the approach to the level crossing had been reduced – whether the truck driver would have reduced his speed had the speed limit been lower than it was – the evidence did not establish that reducing the speed limit would have prevented the collision – the evidence established that the truck driver would not have reduced his speed had the speed limit been lowered - COSTS - Bullock order – the appellants ordered to pay the RTA's costs - whether the appellants should reimburse Pacific National for the RTA's costs – whether the three conditions required for a Bullock order satisfied – whether the appellants' conduct was such to make it fair to order the appellants to reimburse Pacific National – appellants' conduct does not warrant the making of a Bullock order against it