Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298 Hearing dates: 7 – 9 July 2015 Date of orders: 30 September 2015 Decision date: 30 September 2015 Before: Ward JA at [1]; Emmett JA at [354]; Gleeson JA at [384] Decision: (1) Dismiss the appeal with costs. (2) Dismiss the second respondent's cross appeal with costs. (3) Allow the first respondent's cross appeal and set aside the finding made against him of contributory negligence. (4) Order the appellant and the second respondent to pay to the first respondent the sum by which the damages awarded at first instance were reduced for his contributory negligence (and interest thereon at Court rates from the date of the judgment at first instance). (5) Order the appellant and second respondent jointly and severally to pay the first respondent's costs of these proceedings. (6) Order the appellant to pay the second respondent's costs of the appellant's appeal in relation to the issue raised by grounds 24 and 25 of the appellant's notice of appeal but otherwise as between the appellant and the second respondent there be no order as to costs. Catchwords: TORTS – negligence – motorcycle accident – where road recently resurfaced – liability – whether risk of harm reasonably foreseeable – whether risk of harm not insignificant – whether there were reasonable precautions which could have been taken – whether causation established

TORTS – contributory negligence - whether contributory negligence established