CIC Allianz Insurance Ltd v Hallew Pty Ltd t/as G & S Diesel Services [2022] NSWSC 368

CIC Allianz Insurance Ltd v Hallew Pty Ltd t/as G & S Diesel Services [2022] NSWSC 368

CIC failed to discharge its onus of proof that, at the time Hallew’s employee certified the defect notice (5 May 2010), the rear brake linings were less than 0.8mm above the rivets. The evidence established, on balance, that the lining thickness was not below the statutory minimum at the relevant time. Therefore, there was no breach of duty by Hallew, and it was not a tortfeasor liable in respect of the same damage as CIC Allianz under s 5(1)(c); consequently, all claims for contribution or indemnity failed.

Parties
Plaintiff / Cross Claimant / Cross Defendant (as Relevant in Each Proceeding): CIC Allianz Insurance Limited; Defendant / Cross Defendant / Cross Claimant (as Relevant in Each Proceeding): Hallew Pty Ltd t/as G & S Diesel Services
Jurisdiction
Australia
Judgment Date
31 March 2022
Procedural Posture
Contribution/indemnity Claims (cross Claims in Civil Proceedings); Damages (insurance Claim for Contribution) / Final Judgment After Full Hearing
Outcome
Judgment for Hallew Pty Ltd t/as G & S Diesel Services in both proceedings; all cross claims and the main claim dismissed; costs to Hallew.
Legal Topics
Joint and Several Liability, Contribution Between Tortfeasors, Negligence—duty of Care and Breach, Vehicle Safety/inspection—brake Systems, Vicarious Liability, Standard of Proof in Civil Proceedings, Onus of Proof
Tort Law Insurance Law Civil Procedure Joint and Several Liability Contribution Between Tortfeasors Negligence—duty of Care and Breach Vehicle Safety/inspection—brake Systems Vicarious Liability +2 more

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Parties

CIC Allianz Insurance Limited

Plaintiff / Cross Claimant / Cross Defendant (as Relevant in Each Proceeding)

Hallew Pty Ltd t/as G & S Diesel Services

Defendant / Cross Defendant / Cross Claimant (as Relevant in Each Proceeding)

Procedural Posture

Contribution/indemnity Claims (cross Claims in Civil Proceedings); Damages (insurance Claim for Contribution) / Final Judgment After Full Hearing

Legal Issues

  1. 1 Whether Hallew Pty Ltd (t/as G & S Diesel Services) was a tortfeasor liable in respect of the same damage as CIC Allianz under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
  2. 2 Whether CIC Allianz discharged its onus that Hallew breached a duty of care (via Lewry’s inspection) by failing to observe the rear brake linings were less than 0.8mm above the rivets on 5 May 2010; whether that breach causally contributed to the damage

Ratio Decidendi

CIC failed to discharge its onus of proof that, at the time Hallew’s employee certified the defect notice (5 May 2010), the rear brake linings were less than 0.8mm above the rivets. The evidence established, on balance, that the lining thickness was not below the statutory minimum at the relevant time. Therefore, there was no breach of duty by Hallew, and it was not a tortfeasor liable in respect of the same damage as CIC Allianz under s 5(1)(c); consequently, all claims for contribution or indemnity failed.

Court Disposition

Judgment for Hallew Pty Ltd t/as G & S Diesel Services in both proceedings; all cross claims and the main claim dismissed; costs to Hallew.

Orders

  • In proceedings 2014/00099044: (1) Judgment for the cross defendant Hallew Pty Ltd on the first cross claim. (2) Second cross claim dismissed. (3) CIC Allianz Insurance Limited to pay Hallew Pty Ltd’s costs of and incidental to the first and second cross claims.
  • In proceedings 2017/00137903: (1) Judgment for the defendant, Hallew Pty Ltd. (2) CIC Allianz Insurance Limited to pay Hallew Pty Ltd's costs of and incidental to the statement of claim.