Lyschrome comes off second best in court ruling

Trucking operator faces significant bill after collision involving two drivers on Pacific Highway

Lyschrome comes off second best in court ruling
Lyschrome comes out second best

By Brad Gardner | May 29, 2012

A trucking operator is facing significant compensation and court costs after one of its drivers was found largely responsible for a collision with another truck on the Pacific Highway.

The NSW Court of Appeal apportioned greater blame to Lyschrome driver Peter Hansen for a June 2009 collision with Noel Christopher Hawkins of Slattery Transport.

Under heavy rain and with a restricted view, Hansen pulled out of a service station at South Grafton about 2.15am onto a sweeping bend on the highway. His truck crossed the southbound lanes and then pulled into the northbound lane of Hawkins, who was coming round the bend.

Both vehicles collided, causing $88,000 in damage to Slattery Transport and $30,000 to Lyschrome. No-one was injured.

Judge John Basten says Hansen was attempting a dangerous manoeuvre in light of the weather and his lack of visibility, which was restricted to 50 metres. However, he ruled that Hawkins was travelling too fast in the circumstances.

"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," Basten says.

He held Hansen 66 percent liable for the incident and apportioned 33 percent of the blame to Hawkins. The judge also ordered Lyschrome and Hansen to pay 66 percent of Slattery’s and Hawkins’s court costs.

Although Basten directed the companies to reach an agreement on costs, he estimated the payment to Slattery Transport would be $48,432.

The matter was originally heard in 2011 in the NSW District Court, which ruled in Slattery’s favour and awarded just over $99,000. It rejected Lyschrome’s counter-claim that Hawkins was negligent, prompting the company to turn to the Court of Appeal.

Basten also ordered Lyschrome to pay 66 percent of Slattery’s and Hawkins’s District Court costs.

While the judge in the in the initial proceedings found that Hawkins was travelling 10km/h too fast, she rejected Lyschrome’s claim the driver contributed to the accident.

"Having accepted that Mr Hawkins was travelling too fast in the circumstances, the trial judge should have concluded that negligence had been established," Basten says.

"Two variables were important, namely the driver’s reasonable reaction time and the safe speed."

He says the speed of Hawkins’s truck, which came out of the bend at the 60km/h speed limit, meant any attempt to slow down rapidly would have caused the vehicle to slide. Basten says the risk of a collision was foreseeable.

"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," Basten says.

"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."

Hansen told the court he could see about 80 to 90 metres ahead, but expert testimony put it closer to 50 metres, meaning Hansen could not have seen Hawkins when he began to pull out.

Basten says the driver was obliged to give way to traffic and that his manoeuvre on a sweeping bend in the dark when it was raining was dangerous.

Hansen claimed he used his radio to notify nearby truck drivers he was pulling out. However, Hawkins’s radio was switched off because it was malfunctioning.

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