HUNT v NOMINAL DEFENDANT [1996] NSWCA 260

HUNT v NOMINAL DEFENDANT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and COLE JJA 28 June 1996, 28 June 1996 [1996] NSWCA 260

NEGLIGENCE — oil slick-onus not satisfied.

Cole JA Judge Patton found that the appellant owner was negligent in that his vehicle being driven by his wife in a northern direction in Enterprise Drive, Ourimbah, veered on to its incorrect side of the road way and collided head on with the vehicle driven by the plaintiff.

Mrs Hunt had turned to her left from Burns Road into Enterprise Drive and travelled about 50 metres from the turn to the point of collision. Her denial of negligence was upon the basis that there was oil spread over the western carriageway of Enterprise Drive in which she was travelling, and that caused her to skid. Thus it was said she was not negligent in being on the incorrect side of the road.

The plaintiff had sued both Mr Hunt as owner of the vehicle and the Nominal Defendant. It was contended by the plaintiff that reg109 of The Motor Traffic Regulations prohibited a person from driving a motor vehicle upon a public street "without adequate precautions being taken to prevent waste oil or grease from the machinery or from any other part of such vehicle from dropping on to the roadway". If there was waste oil on the roadway, that was said to be the fault of an unknown vehicle.

It was argued that s28(1) of The Motor Accidents Act provided for recovery of damages against the nominal defendant for bodily injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle where that vehicle could not be identified after due enquiry and search.

After the accident a police officer attended and recorded that the appellant's vehicle came across "an oily patch". At the trial the police officer gave evidence that "In this particular case I could see that there was a definite film of oil along that 80 metres of roadway, and it wasn't due to anything that was - any fumes or any oil like trace elements of oil or stuff that may be left on the bitumen by just general traffic. This was something out of the ordinary. It was from one, it was spread over the 80 metres and it started and finished in one particular spot."