Pillinger v Lismore City Council [2014] NSWSC 447

Supreme Court New South Wales

Medium Neutral Citation: Pillinger v Lismore City Council [2014] NSWSC 447 Hearing dates: 2 - 6, 9 - 13 July 2012; 3 - 7, 10 - 11 December 2012 Decision date: 16 April 2014 Jurisdiction: Common Law Before: Button J Decision: (1) Judgment for the plaintiff against the first defendant and the third defendant in the sum of $1,170,000. (2) Contribution in the liability pursuant to order 1 at 60% in the case of the third defendant and 40% in the case of the first defendant. (3) Judgment for the first defendant against the third defendant on the cross-claim of the first defendant. (4) Dismiss the cross-claim of the third defendant against the first defendant. (5) The parties are to formulate draft orders, as necessary, further to the above orders, and in accordance with my reasons for judgment. (6) The parties are to formulate draft orders with regard to costs and other ancillary matters in accordance with the above orders. (7) The parties have liberty to approach my Associate in order to obtain a date for the determination of the further orders referred to in orders 5 and 6. Catchwords: TORTS - negligence - motorcyclist injured after driving over loose material on newly resurfaced road - whether parties responsible for conducting roadworks negligent - application of Part 5 of the Civil Liability Act 2002 - cross-claim between defendants - interpretation of contract - contributory negligence - contribution between defendants pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5E, 5D, 5F, 5H, 42, 43A, 45 Evidence Act 1995 (NSW), s140 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1)(b) Cases Cited: Australian Broadcasting Commission v Australian Performing Rights Association Ltd (1973) 129 CLR 99 Benic v New South Wales [2010] NSWSC 1039 Bitumen and Oil Refiners (Aust) Ltd v Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Commissioner for Government Transport [1955] HCA 1; 92 CLR 200 Council of the Shire of Wyong v Shirt and Others (1979) 146 CLR 40 Erect Safe Scaffolding (Australia) Pty Ltd v Sutton and Another [2008] NSWCA 114; 72 NSWLR 1 Firth v Latham & Ors [2007] NSWCA 40 Garzo v Liverpool/ Campbelltown Christian School [2012] NSWCA 151 Jones v Dunkel [1959] HCA 8; 101 CLR 298 North Sydney Council v Roman [2007] NSWCA 27, 69 NSWLR 240 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; 59 ALJR 492 Roads and Traffic Authority of NSW, Council of the Shire of Evans and Pioneer Road Services Pty Ltd v Palmer [2003] NSWCA 58 Roads and Traffic Authority of NSW v Dederer (2007) HCA 42; 234 CLR 330 Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360 Short & Anor v Barrett (New South Wales Court of Appeal, 5 October 1990, unreported) Category: Principal judgment Parties: David Pillinger by his tutor Helen Pillinger (Plaintiff) Lismore City Council (First Defendant) Bitupave Limited (t/as Boral Asphalt) (Third Defendant) Representation: Counsel: R W Seton SC, F Austin (Plaintiff) R S Sheldon SC (First Defendant) M T McCulloch SC, R Gambi (Third Defendant) Solicitors: Shanahan Tudhope Lawyers (Plaintiff) DLA Phillips Fox (First Defendant) Davidson Gerathy Lawyers (Third Defendant) File Number(s): 2009/333088