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

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

The primary judge did not err in finding that Boral and the Council knew or ought to have known of a not insignificant risk that roadbase and aggregate left on the high eastern side of the road near the table drain could be washed onto the roadway and reduce friction for motorcyclists, and that reasonable precautions should have been taken to avoid leaving that material there. The evidence supported the finding that the swathe contained roadbase and aggregate from the windrow left by Boral and the Council and that, but for each party's failure to remove the material, the accident would not have occurred. There was no evidentiary basis for finding contributory negligence by Mr Pillinger....

Jurisdiction
Australia
Judgment Date
30 September 2015
Procedural Posture
Negligence Appeal and Cross Appeals From the Supreme Court of New South Wales, Common Law Division / Court of Appeal Decision
Outcome
Appeal dismissed; second respondent's cross-appeal dismissed; first respondent's cross-appeal allowed; finding of contributory negligence set aside.
Legal Topics
['negligence' 'motorcycle Accident' 'road Resurfacing Works' 'foreseeability' 'risk of Harm Not Insignificant' 'reasonable Precautions' 'causation' 'contributory Negligence' 'multiple Tortfeasors' 'apportionment' 'construction of Public Liability Insurance Clause']
['torts' 'contracts'] ['negligence' 'motorcycle Accident' 'road Resurfacing Works' 'foreseeability' 'risk of Harm Not Insignificant' 'reasonable Precautions' 'causation' 'contributory Negligence' 'multiple Tortfeasors' 'apportionment' 'construction of Public Liability Insurance Clause']

Case Brief

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Procedural Posture

Negligence Appeal and Cross Appeals From the Supreme Court of New South Wales, Common Law Division / Court of Appeal Decision

Legal Issues

  1. 1 ['Whether Boral and the Council breached duties of care owed to road users by leaving roadbase and aggregate on the eastern side of the road where it could be washed onto the roadway.' 'Whether the risk of harm to motorcyclists was reasonably foreseeable and not insignificant under the Civil Liability Act 2002 (NSW).' "Whether the presence of roadbase and aggregate in the swathe was a necessary condition of Mr Pillinger's accident." 'Whether Mr Pillinger was contributorily negligent.' "Whether the primary judge's apportionment of responsibility between Boral and the Council was unreasonable or plainly unjust." "Whether clause 10 of the contract required Boral to effect public liability insurance covering the Council's liability to Mr Pillinger." 'Whether Boral breached clauses D2.7(iii) or D2.7(v) of its contract with the Council.']

Ratio Decidendi

The primary judge did not err in finding that Boral and the Council knew or ought to have known of a not insignificant risk that roadbase and aggregate left on the high eastern side of the road near the table drain could be washed onto the roadway and reduce friction for motorcyclists, and that reasonable precautions should have been taken to avoid leaving that material there. The evidence supported the finding that the swathe contained roadbase and aggregate from the windrow left by Boral and the Council and that, but for each party's failure to remove the material, the accident would not have occurred. There was no evidentiary basis for finding contributory negligence by Mr Pillinger....

Court Disposition

Appeal dismissed; second respondent's cross-appeal dismissed; first respondent's cross-appeal allowed; finding of contributory negligence set aside.

Orders

  • ['Dismiss the appeal with costs.' "Dismiss the second respondent's cross appeal with costs." "Allow the first respondent's cross appeal and set aside the finding made against him of contributory negligence." 'Order the appellant and the second respondent to pay to the first respondent the sum by which the damages...