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." The collision point was towards the mid point of that 80 metres. On the other hand, shortly before the accident, it had been drizzling and raining after a dry spell. Common experience indicates that, in those circumstances, roads become slippery as the moisture mixes with oil deposited from exhaust fumes and the like on the road way by general traffic. The police officer called the bush fire brigade to clean the road, and Mr Cameron, a technical engineer who was the group captain, confirmed that general experience that "there is a visible film of oil commonly on the road surface after a dry period", and that the road thus becomes slippery with rain. The bush fire brigade had been called out to clean roads in such circumstances. He was unable to recall how much oil there was on the roadway. 2 UNREPORTED JUDGMENTS The plaintiff also had contended that the oil spill may have been caused by leakage of the two vehicles in the collision. That was rejected by the trial Judge. The trial Judge thus had to determine whether he accepted the police officer's evidence that this was an unusual oil slick, not caused by general traffic usage, as he had said, or whether he rejected that evidence and found that the slick was due to rain mixing with normal deposits from general traffic, as had been suggested to the police officer during cross-examination. The plaintiff bore the onus of establishing that it was waste oil which dropped on to the roadway from an unknown motor vehicle. The alternative was it was a general deposit. His Honour held that he was not persuaded that the oily film on the road was other than the sort of oily film which is to be expected on a road after a period of dry weather followed by rain. The plaintiff thus failed to discharge the onus. In those circumstances, the claim against the Nominal Defendant failed, and the appellant failed to negate the inference of negligence from having struck the second respondent's vehicle head on on the wrong side of the road. The Judge held that it was notorious, as it is, that with rain on a bitumen road after a dry spell, slippery conditions occur, and extra care is required. He found that Mrs Hunt was travelling close to 40 kilometres an hour, which was, in the treacherous conditions, excessive in the circumstances, and thus, negligence was established. In my opinion these are classic findings of fact by a trial Judge. The circumstances in which this Court may interfere in such findings are limited. In my opinion, nothing has been advanced to satisfy the heavy burden of establishing the circumstances which could justify such interference, and accordingly the appeal should be dismissed with costs. Handley JA I agree. Sheller JA I also agree. The orders of the Court therefore are appeal dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: J Sharp Solicitors for the appellant: PV McCulloch and Buggy Counsel for the First Respondent: DT Kennedy Solicitors for the First Respondent: Windeyer Dibbs Counsel for the Second Respondent: A Fennelly Solicitors for the Second Respondent: Cutler Richardson and Burgin