Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Hansen v Slattery Transport (NSW) Pty Ltd [2012] NSWCA 145
• Hearing dates: 12 March 2012
• Decision date: 18 May 2012
• Before: Beazley JA at 1; Basten JA at 2; Macfarlan JA at 38

Decision

(1) Allow the appeal and set aside orders 1-3 made by the District Court.

(2) Give judgment for Slattery Transport (NSW) Pty Ltd against Lyschrome Pty Ltd and Peter Hansen in an amount to be agreed between the parties or, absent agreement, to be determined by this Court, to be calculated as two-thirds of the loss suffered by Slattery Transport (NSW) Pty Ltd less one-third of the loss suffered by Lyschrome Pty Ltd.

(3) Order that Lyschrome Pty Ltd pay two-thirds of the costs of Slattery Transport (NSW) Pty Ltd and Noel Christopher Hawkins in the District Court.

(4) Order that the appellants pay two-thirds of the costs of the respondents in this Court including two-thirds of the costs of the objection to competency.

(5) Direct that if agreement is reached with respect to the amount of the judgment and in respect of costs, the appropriate orders, including orders varying these orders, are to be entered by the Registrar.

(6) In the event that agreement is not reached in respect of any proposed orders or variation of these orders, each party is directed to file and serve draft orders and submissions in support within 28 days of the date of this judgment, so that the Court may determine final orders without a further oral hearing.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: DAMAGES - torts - negligence - claim and cross-claim each alleging negligence and each answered by a defence of contributory negligence - whether a single apportionment of responsibility appropriate; TORTS - negligence - motor vehicle accident - vehicle entering highway hit by second vehicle already on highway - whether driver entering highway was negligent - whether entering highway was a dangerous manoeuvre in the circumstances; TORTS - negligence - motor vehicle accident - vehicle entering highway hit by second vehicle already on highway - whether driver already on highway was negligent - whether driver already on highway was travelling at a safe speed - identification of relevant risk
• Legislation Cited: Civil Liability Act 2002 (NSW), s 5B
• Category: Principal judgment
• Parties: Peter Hansen - First Appellant; Lyschrome Pty Ltd - Second Appellant; Slattery Transport (NSW) Pty Ltd - First Respondent; Noel Christopher Hawkins - Second Respondent
• Representation: Counsel: N A Cotman SC/R A Parsons - Appellants; S G Campbell SC/A R Davis - Respondents; Solicitors: CLS Legal - Appellants; Shaw McDonald - Respondents
• File Number(s): CA 2011/77980

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2011-03-04 00:00:00
• Before: Balla DCJ
• File Number(s): DC 2010/99885

HEADNOTE

[This headnote is not to be read as part of the judgment]

In the early hours of 20 June 2009 Mr Hawkins was driving a semi-trailer owned by Slattery Transport (NSW) Pty Ltd ("Slattery Transport"). As he approached a sweeping bend to the right, a second semi-trailer driven by Mr Hansen and owned by Lyschrome Pty Ltd ("Lyschrome") pulled out of a service station on the far side of the highway, crossed the southbound lanes and pulled into the northbound lane in front of Mr Hawkins. Mr Hawkins' vehicle collided with Mr Hansen's vehicle from behind. Both vehicles suffered damage.

There was evidence that Mr Hansen had given a warning over CB radio as he was leaving the service station, but a dispute arose over whether Mr Hawkins had heard and disregarded this warning.

Slattery Transport brought proceedings in the District Court alleging negligence on the part of Mr Hansen, and vicariously, Lyschrome. Lyschrome cross-claimed against Mr Hawkins and Slattery Transport. Both defendants and cross-defendants alleged contributory negligence on the part of the other driver.

On 4 March 2011 Balla DCJ handed down judgment in favour of Slattery Transport for the amount of its claim plus interest. She rejected the cross-claim by Lyschrome and its defence of contributory negligence.

Mr Hansen and Lyschrome appealed to this Court, challenging the findings against them with respect to negligence and, in the alternative, the finding that Mr Hawkins had not been contributorily negligent. Lyschrome sought judgment in its favour on its cross-claim.

The issues for determination on appeal were:

(i) whether Mr Hansen had been negligent,

(ii) whether Mr Hawkins had been contributorily negligent, and

(iii) if both were negligent, the appropriate apportionment of liability.

The Court held (per Basten JA, Beazley and Macfarlan JJA agreeing), allowing the appeal:

In relation to (i)

1. The expert evidence provided ample support for the finding of the trial judge that entering the northbound lane from the east was a dangerous manoeuvre to undertake at night-time in the rain. The finding of negligence in respect of Mr Hansen should be upheld: [22]

In relation to (ii)

2. The trial judge heard the evidence of both drivers and was evidently not satisfied that Mr Hawkins had heard and disregarded Mr Hansen's warning. The reason given for her finding was neither inadequate nor irrational: [17]

3. It should be inferred that Mr Hawkins was travelling too fast in the circumstances. Those circumstances included the lack of visibility and the fact that any attempt to slow down rapidly by braking would lead the vehicle to slide. The appropriate conclusion is that Mr Hawkins was, in that respect, negligent: [32]

In relation to (iii)

4. There being a claim and a cross-claim, each alleging negligence and each being answered by a defence relying on contributory negligence, a single apportionment of responsibility is appropriate. In the circumstances, responsibility should be apportioned as to two-thirds against Mr Hansen, and as to one-third against Mr Hawkins: [33]

Judgment

1 BEAZLEY JA: I agree with Basten JA.

2 BASTEN JA: In the early hours of 20 June 2009 Mr Noel Hawkins was driving a semi-trailer owned by Slattery Transport (NSW) Pty Ltd ("Slattery Transport") north along the Pacific Highway at South Grafton. As he approached a sweeping bend to the right, a second semi-trailer driven by Mr Peter Hansen and owned by Lyschrome Pty Ltd ("Lyschrome") pulled out of a service station on the far side of the highway, crossed the southbound lanes and pulled into the northbound lane in front of Mr Hawkins. The vehicle driven by Mr Hawkins collided with Mr Hansen's vehicle from behind, making contact with the trailer on the left-hand side, some five metres from the rear of the vehicle.

3 No one was injured in the accident, but both vehicles suffered damage, Slattery Transport suffered losses valued at $88,000; Lyschrome suffered losses valued at $30,000. Slattery Transport brought proceedings in the District Court alleging negligence on the part of Mr Hansen and, vicariously, Lyschrome. Lyschrome cross-claimed against Mr Hawkins and Slattery Transport. Both defendants and cross-defendants alleged contributory negligence on the part of the other driver.

4 The dispute as to liability went to trial in the District Court in February 2011. On 4 March 2011 Balla DCJ handed down judgment in favour of Slattery Transport for the amount of its claim, which, together with interest, totalled $99,000. The trial judge rejected the cross-claim by Lyschrome and its defence of contributory negligence.

5 The appeal brought by Mr Hansen and Lyschrome challenged the findings of the trial judge with respect to negligence. In the event that the findings of negligence against them were to be upheld, they also challenged the finding that Mr Hawkins had not been contributorily negligent. Lyschrome sought judgment in its favour on its cross-claim.

6 For the reasons given below, the appeal should be dismissed so far as it relates to the finding of negligence against the appellants, but should be allowed with respect to the contributory negligence of Mr Hawkins. There should be a finding that Mr Hansen bore two-thirds of the responsibility for the collision and Mr Hawkins one-third. This will have consequences for the calculation of interest payable and for the costs of the proceedings. As there appears to have been an offer of settlement, the details of which are not known to the Court, the parties should have an opportunity to agree on appropriate orders. Given the small amounts involved, it is expected that agreement will be reached and that appropriate orders may be made by consent.

Circumstances of accident

7 The accident occurred at approximately 2.15am on 20 June 2009: Tcpt, 23/02/11, p 1 (35). It was dark, but the area was built up and there were streetlights. It was raining at the time of the accident.

8 Judge Balla summarised the evidence of Mr Hawkins (to whom she referred as "the plaintiff") in the following passage:

"The plaintiff said that as he approached the scene of the accident it was raining heavily. It was dark and he had his headlights on. There were two northbound lanes. He was travelling in the lane closest to the centre of the road. There were very few cars on the road. The speed limit was 60kph.

As he approached the commencement of the right hand bend he noted that the advisory speed limit was 55kph. He slowed down because the car in front of him slowed down and then turned left into the other service station. His visibility was reduced to between 30 and 50 metres because of the heavy rain. He changed to 6th or 7th gear (out of 13). He drove around the bend at around 50kph.

As he came out of the bend he stepped on the accelerator intending to increase his speed to 60kph. He agreed that he told the attending police officer he may have increased his speed to 65kph at the point of impact. His headlights were still pointing to the left kerb because of the curve in the road. As the road straightened his headlights started to point towards and along the road ahead. When the road was lit up he saw the defendant's semi-trailer. It was approximately 40 to 50 metres ahead of him. The rear of the semi-trailer had just left the gutter of the right side kerb of the service station. He could not see the cabin as the trailer was approximately perpendicular to the roadway travelling across the oncoming lanes. He estimated the defendant's speed at 5 to 10kph. He immediately applied his brakes and turned his steering wheel to the left. He was not able to avoid the front driver's side of his vehicle colliding with the passenger side of the trailer near the tool box area which he described as one-third of the way down the passenger side of the trailer."

9 The other driver, Mr Hansen (to whom the trial judge referred as "the defendant") had also been travelling north on the highway. He had stopped at the service station to get a sandwich and food. His description of his actions as he pulled out of the service station were summarised by the trial judge as follows:

"He drove to the end of the driveway of the service station and stopped. He agreed that there was a dip in the road immediately in front of the cabin which he had to cross to enter onto the roadway. He also agreed that he had to drive carefully and slowly over that dip.

The defendant said he looked to the south and remained stationary until he was satisfied that there were no vehicles approaching from either side. His view to the south was limited by the sweeping curve of the roadway to approximately 80 to 90 metres. The moment before he started to exit he made an announcement on CB radio - 'northbound out of the Caltex'.

The defendant said he moved his semi-trailer to a point close to the centre of the roadway and as he did so he had another look to his left to ensure that there were no vehicles approaching. He could not see any so he continued the right hand turn onto the northbound lane of the Pacific Highway. When his semi-trailer was almost straight in the northbound lane and 10 to 15 seconds after he had left the service station he felt the impact of the collision."

Elements of negligence

(a) the CB radio warning

10 There was no issue that Mr Hansen gave a warning over the CB radio as he asserted in his evidence. There was, however, an issue as to whether Mr Hawkins heard it. According to Mr Hansen, he spoke to Mr Hawkins after the accident, in the course of which he asked, "Did you hear me call over the radio 'Northbound out of the Caltex'?", to which Mr Hawkins had replied, "Yes but I didn't think much of it."

11 The cross-examiner did not challenge the assertion that Mr Hansen made the announcement, rather he suggested that, having given the warning, Mr Hansen considered he was entitled to drive onto the northbound lane of the highway. His account of his conversation with Mr Hawkins was directly challenged. It was put to him that Mr Hawkins did not agree that he had heard the announcement, but that suggestion was rejected.

12 Mr Hawkins stated in his affidavit, in response to the statement of the conversation recounted in Mr Hansen's affidavit:

"I did not hear this announcement as I had turned off my CB radio earlier around Kempsey, New South Wales because it had been making annoying static noises from or about the time I reached Forster, New South Wales."

13 In cross-examination, Mr Hawkins denied any recollection of a conversation with Mr Hansen after the accident. He said he did not know who the other driver was at that time and that he (Hawkins) was "pretty well shaken": Tcpt, 23/02/11, p 37(13). He denied making the remark that he had heard the announcement but 'didn't think much of it' because "I never had my radio turned on because it was playing up with an electrical fault", p 37(30). He was pressed as to whether his radio was on or off and responded (p 37(40)):

"No my radio was not working ... every time you hit a bump or something the radio would go off and come back on crackly so I turned it off because it was annoying me."

14 Mr Hawkins' wife, Samantha Hawkins, was in the vehicle with him at the time of the accident. In cross-examination, she said that she was aware that there was a CB radio in the vehicle but did not recall whether it was operating at the time of the accident; she said she was having a conversation with Mr Hawkins at that time: Tcpt, 23/02/11, p 45(30).

15 The trial judge referred to the dispute and resolved it by preferring the evidence of Mr Hawkins. The reason she gave was that it did not seem likely that he would hear a warning and then ignore it: Judgment, p 6. In written submissions, the appellant described this reasoning as "manifestly inadequate" and giving "no rational basis" for preferring the evidence of one witness over the other. The submission did not indicate how the conflict in the evidence of the respective drivers should otherwise have been resolved.

16 So far as the conduct of Mr Hansen was concerned, it was accepted that he gave the warning and it mattered not whether Mr Hawkins heard it. So far as the conduct of Mr Hawkins was concerned, it would have been a relevant factor suggesting a want of reasonable care on his part if he had heard the message but had ignored it. That, indeed, was why the trial judge thought it unlikely that he had heard the warning.

17 In so far as the appellants sought to establish negligence on the part of Mr Hawkins, they needed to affirmatively satisfy the trial judge that the warning had been heard and disregarded. That required that her Honour accept the accuracy of the conversation recounted by Mr Hansen as having taken place immediately after the accident. She heard the evidence of both witnesses and was evidently not so satisfied. Although she expressed a preference for the evidence of Mr Hawkins, she did not need to go so far: it was sufficient that she did not accept the evidence of Mr Hansen on that point. In any event, the reason given for her finding was neither inadequate nor irrational. The challenge to the finding is rejected and the assessment of the negligence of the respective parties must proceed on the basis that Mr Hawkins did not hear the warning.

(b) conduct of Mr Hansen

18 With respect to the negligence of Mr Hansen, the trial judge relied upon three factors, namely:

(a) he was obliged to give way to traffic on the highway;

(b) because of the need to move slowly across the dip between the service station and the roadway, together with the need to make a right hand turn immediately onto the northbound carriageway, the manoeuvre was slow and took between 10 and 15 seconds from commencement until the point of impact, and

(c) the manoeuvre was carried out at night in rain and on a sweeping bend.

19 Two additional factors were relevant to the assessment of Mr Hansen's conduct. The first was his ability to see traffic driving north on the highway. Mr Hansen gave evidence that he could see the curve of the roadway to "approximately 80-90 metres" to the south. The expert called by his side, Mr Jamieson, described 90 metres as a "'geometrically theoretical' sighting line": Report, p 9. However, Mr Jamieson assumed that the actual line of visibility was "something less - possibly 50 metres as suggested by Mr Hawkins". This evidence was accepted.

20 Mr Hanson's time estimate was confirmed by Mr Jamieson, who calculated that approximately 11 seconds would have elapsed from the moment the Lyschrome vehicle left the gutter at the service station driveway to the point of impact. A vehicle travelling at 55kph on the highway would travel more than 150 metres during that time. Accordingly, Mr Jamieson concluded, "the northbound semi-trailer would have been out of sight when the Lyschrome driver (Mr Hansen) commenced his traffic manoeuvre": Report, p 10. He further stated:

"The second conclusion based on the geometry of the curve and the sighting distance is that the rear tail lights and side marker lights should have been evident to a normally alert northbound driver from behind at a range of at least 50 metres (based on the assumption that there was heavy rain present)."

As noted by the trial judge, that was the distance at which Mr Hawkins did see them: Judgment, p 5.

21 In discussing the "avoidability" of the accident, Mr Jamieson accepted that a reaction delay of about two seconds should be allowed, during which the vehicle travelling at 55km/h would cover 31 metres: Report, p 12. He further calculated the stopping distance as a further 40 metres, giving an overall calculation of 71 metres.

22 These figures provided ample support for the finding of the trial judge that this was a dangerous manoeuvre to undertake at night-time in the rain. Her finding of negligence on the part of Mr Hansen was correct.

(c) negligence of Mr Hawkins

23 The trial judge noted Mr Jamieson's evidence that if the rain was "torrential", as described by Samantha Hawkins, it would have been appropriate to drive "at a crawl", which he defined as 30kph: Judgment, p 4. Mr Hawkins described the conditions as "raining heavily": affidavit, par 13. The trial judge accepted this description. Mr Hawkins said that by the time of the collision he had "lightly stepped on the accelerator to pick up the speed to approximately 60km/h": affidavit, par 21. His ability to see vehicles ahead was limited by the fact that it was dark, by the heavy rain and by the bend in the road, which meant that his headlights were directed to the left. If, as he suggested, his effective visibility was limited to 50 metres, he would have had no realistic opportunity to avoid a slow moving vehicle on the highway travelling at about 10 kph.

24 In the course of cross-examination, Mr Hawkins gave the following evidence (Tcpt, 23/02/11, pp 23-25):

"Q. So your answer to my question then, and even though your vision was reduced to half its normal range, in those circumstances you didn't have any concern that it was unsafe to be increasing to 60 kilometres per hour?

A. No, not at that point in the bend because I was pretty well near the straight up point, like I say to you, ... when I started accelerating which is maybe a hundred metres, two hundred metres left on the bend if that and you don't in all the time I've driven that road I have never had anyone come out from that service station going northbound, always south.

...

Q. But in any case you'd agree wouldn't you that safe driving practice is to be travelling at a speed that allows you to stop if you see a traffic event on the roadway ahead?

A. Yes.

Q. So if your visibility is reduced would you agree that it's safe driving practice to slow down so you're travelling at a speed that allows you to stop?

A. As I did. I reduced speed to 50ks an hour, the advisory sign was 55, which meant I was travelling 5 under the advisory sign.

...

Q. So travelling at the speed you were, which was in the vicinity of 60 kilometres per hour by that point in time -

A. Yes.

Q. - there was insufficient room for you to avoid an accident?

A. That's what I believe, I done everything in my power, I believe, to try and avoid it.

Q. So that really your case is that, irrespective of what was ahead of you, there was no circumstances that night that you could have, at that moment, because of the visibility, that you could have stopped because of a traffic event up ahead of you?

A. In those weather conditions at that, the condition that road was in, in weather, it didn't matter how hard I hit the brakes or how soft I hit the brakes, it was going to slide.

Q. What I'm going to suggest to you is that in the weather conditions that you describe where you've got reduced visibility to half of the normal range that it was incumbent upon you driving that vehicle to be driving at a speed that would allow you stop if there was a traffic incident ahead of you, isn't that the case?

A. Some people would say yes but I feel that I was travelling at a speed where I could've stopped in an emergency if I'd seen the emergency quick enough.

...

Q. Do you recall speaking to the police after the accident?

A. Yes.

Q. You told the police didn't you that you thought you were travelling at about 60 to 65 kilometres per hour after you'd gone around the curve?

A. I told them that point of impact I could've been doing 60 to 65."

25 With respect to speed, the trial judge made the following finding (Judgment, p 6):

"The next issue is whether the accident could have been avoided if the plaintiff had been travelling more slowly. He was driving at or just above the speed limit. I decline to find that the rain was 'torrential' because the plaintiff could see the defendant's semi-trailer when it was 40 to 50 metres in front of him. However, I am satisfied that it was raining heavily so that a reasonable driver would have travelled at a slightly lower speed (say 10kph) than the speed limit."

26 The speed limit on that stretch of the highway was 60kph: accordingly, her conclusion as to a reasonable speed for Mr Hawkins to be travelling was 50kph. Adopting the same assumption as to the level of visibility, Mr Jamieson would appear to have supported a speed below that. In any event, her Honour took a calculation from Mr Jamieson's report using a speed of 55kph (which he had assumed to be Mr Hawkins' speed) which required a stopping distance of 40 metres (plus 31 metres travelled during the reaction time). Her Honour then said she was "not persuaded that the defendant has shown that the plaintiff's speed caused or contributed to the accident". After referring to the evidence with respect to the CB radio announcement, her Honour found that the appellants had not satisfied her that Mr Hawkins was negligent: Judgment, p 7.

27 This conclusion is not supported by the findings of fact. Having accepted that Mr Hawkins was travelling too fast in the circumstances, the trial judge should have concluded that negligence had been established. Rather, she concluded that the negligence was immaterial because, travelling at an appropriate speed, Mr Hawkins could not have avoided the collision.

28 This reasoning is flawed in two respects. First, it appears to reject, without explanation, the evidence of Mr Jamieson to the effect that a greater reduction of speed was required if visibility was as poor as Mr Hawkins suggested. Secondly, the calculation as to causation did not support the conclusion. The relevant calculation for the purposes of causation was to be undertaken on the assumption that Mr Hawkins was travelling at a safe speed. Two variables were important, namely the driver's reasonable reaction time and the safe speed. In relation to the first, her Honour appears to have accepted the two second reaction time considered reasonable in the circumstances by Mr Jamieson. In relation to the second, a slower speed involved a shorter distance travelled during the relevant reaction time. The calculations made by Mr Jamieson revealed that, at 55kph, the distance travelled in two seconds as about 31 metres and the stopping distance a further 40 metres. At 45kph, the distance travelled in two seconds would have been 25 metres. (At 50kph, the distance would have been a fraction under 28 metres.) At a slower speed the stopping distance would also have been reduced below 40 metres. It is not necessary to undertake some alternative calculation in order to appreciate that the calculation relied upon by the primary judge was not appropriate.

29 The finding that Mr Hawkins was not negligent involved the implicit conclusion that, on the assumption that he was keeping a proper lookout, it was not unreasonable for him to be travelling at a speed which did not allow him to stop or avoid a slow moving vehicle in his lane. That conclusion should not be accepted.

30 In undertaking the analysis required by s 5B of the Civil Liability Act 2002 (NSW), the relevant risk was the risk of a collision with a vehicle moving appreciably slower than that being driven by the person whose conduct is to be assessed. The risk was undoubtedly foreseeable, being one which was known to Mr Hawkins. Given the reduced visibility, together with the fact that his headlights were diverted to the left of the lane by the bend being navigated, the risk was by no means insignificant. In those circumstances, a reasonable driver would have taken the precaution of lowering his or her speed so as to be able to stop or take evasive action if the risk materialised.

31 The inference to be drawn from the evidence is that Mr Hawkins was going too fast to permit him to stop, when confronted by a semi-trailer in front of him travelling at approximately 10kph. He did not say that his reaction time was affected otherwise than by the visibility and the position of his headlights on the road. He said that he did not start to accelerate until level with the Gwydir Highway, which came in on the left: Tcpt, p 16 (20). There was no distraction from traffic merging into the Pacific Highway, which was only one lane at that point. He was also keeping an eye on his trailer in the rear vision mirror as it could "walk": Judgment, p 5.

32 Therefore, accepting that he was keeping a proper lookout ahead, it should be inferred that he was travelling too fast in the circumstances. Those circumstances included the lack of visibility and the fact that any attempt to slow down rapidly by braking would lead the vehicle to slide. The appropriate conclusion is that Mr Hawkins was travelling too fast and was, in that respect, negligent.

Conclusions

33 On the reasoning set out above, each of the drivers was negligent. There being a claim and a cross-claim, each alleging negligence and each being answered by a defence relying on contributory negligence, a single apportionment of responsibility is appropriate. Because it was Mr Hansen's negligence which created the dangerous situation, he should bear primary responsibility. He thereby placed Mr Hawkins in a position of danger, from which he should have been able to extract himself and his vehicle, had he not been travelling unduly fast. In the circumstances, responsibility should be apportioned as to two-thirds against Mr Hansen, and as to one-third against Mr Hawkins.

34 It appears that the judgment given in favour of Slattery Transport in the amount of $99,002.47 involved a quantification of interest to the date of judgment. The preferable calculation is to take the loss suffered by the plaintiff (identified in the statement of claim as $88,126.48) and order the appellants to pay two-thirds of that amount, being $58,751. Lyschrome is, however, entitled to recover one-third of its loss, identified in the cross-claim as $30,958, one-third of which is $10,319. If the respective parties were the same, it would be appropriate to set off the amount recoverable by the appellants for their loss ($10,319) against the amount payable by them to Slattery Transport. That would result in a payment by them to Slattery Transport of $48,432.

35 In strict legal terms, that calculation may not be available, because the defendants in each proceeding involved the driver as well as the owner of the respective vehicles, but the plaintiffs in each proceeding were the owners. Nevertheless, because of the way the matter has been run, the parties may be content with the calculation as indicated, setting off one amount against the other.

36 There are, however, two other factors which prevent a final judgment being given at this stage. First, neither loss was assessed by the trial judge and it may be that the amounts agreed between the parties were not identical with those set out in the claim and cross-claim. Secondly, there will need to be a recalculation of pre-judgment interest. Thirdly, it is not known whether any part of the judgment in the District Court has yet been paid.

37 In these circumstances, the Court should make the following orders:

(1) Allow the appeal and set aside orders 1-3 made by the District Court.

(2) Give judgment for Slattery Transport (NSW) Pty Ltd against Lyschrome Pty Ltd and Peter Hansen in an amount to be agreed between the parties or, absent agreement, to be determined by this Court, to be calculated as two-thirds of the loss suffered by Slattery Transport (NSW) Pty Ltd less one-third of the loss suffered by Lyschrome Pty Ltd.

(3) Order that Lyschrome Pty Ltd pay two-thirds of the costs of Slattery Transport (NSW) Pty Ltd and Noel Christopher Hawkins in the District Court.

(4) Order that the appellants pay two-thirds of the costs of the respondents in this Court including two-thirds of the costs of the objection to competency.

(5) Direct that if agreement is reached with respect to the amount of the judgment and in respect of costs, the appropriate orders, including orders varying these orders, are to be entered by the Registrar.

(6) In the event that agreement is not reached in respect of any proposed orders or variation of these orders, each party is directed to file and serve draft orders and submissions in support within 28 days of the date of this judgment, so that the Court may determine final orders without a further oral hearing.

38 MACFARLAN JA: I agree with Basten JA.

**********

Decision last updated: 18 May 2012