Operator left with court bill for RTA death claim

Operator must pay RTA court costs after failing to prove the authority was liable for a driver death

By Brad Gardner | October 20, 2009

A trucking operator has been forced to pay the Roads and Traffic Authority’s (RTA) court costs after losing a bid to hold the department responsible for a truck driver’s death.

The New South Wales Supreme Court of Appeal has handed Refrigerated Roadways two sets of bills after the RTA won its appeal last month against the road carrier over the death of Mark Evans.

Evans was killed in 1998 when a concrete block thrown off a bridge on the F5 south of Campbelltown smashed through his truck’s windshield and hit him in the chest, causing him to crash his vehicle.

Refrigerated Roadways tried to sue the RTA for about $710,000, arguing it was accountable because it controlled the F5 and should have installed a screen on the bridge due to a foreseeable risk of an incident occurring.

Although the District Court upheld the operator’s claims without deciding on costs in June last year, the decision was overturned in the Supreme Court last month.

Refrigerated Roadways has been told to cover the costs of District Court proceedings and half of the Supreme Court proceedings.

The trucking company could have been ordered to pay more had the RTA offered a compromise during the appeal.

"…In the present [Supreme Court] case the failure of the RTA to make any offer of compromise…once the appeal had been instituted is a reason for denying it an order for indemnity costs concerning the appeal," Justice Joseph Campbell says.

During District Court proceedings, the department unsuccessfully suggested a verdict to Refrigerated Roadways and the offer for each party to cover their own costs.

"In my view, the terms of the offer reflected a genuine compromise in the circumstances," Campbell says.

Although the company’s financial liability to the RTA was not mentioned, the court was told the department had incurred significant pre-trial costs from taking witness statements, collating documents and seeking experts to argue on its behalf.

The RTA will now determine a figure and negotiate a settlement with Refrigerated Roadways.

David Greenhalgh from law firm Bartier Perry, which represented the operator, says Refrigerated Roadways will not appeal the Supreme Court's decision.

Evans is survived by a wife and two children. The operator paid a lump sum and continuing weekly payments to his widow.

Supreme Court Justice Ruth McColl last month dismissed the case against the RTA on the basis of budgetary constraints and the department’s competing priorities.

"The availability of funding was a matter of considerable importance to an assessment of what the reasonable response to the foreseen risk would have been," McColl ruled.

The incident occurred at the Glenlee Bridge, which has since been screened and renamed after Evans.

Although the RTA agreed it had a duty of care to motorists on government-controlled roads, it argued it should not be held liable for criminal actions of third parties because they are outside of the department’s control.

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