LANCI PLANT HIRE PTY LTD v GRASSO [1998] NSWCA 127

LANCI PLANT HIRE PTY LTD v GRASSO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER, COLE and STEIN JJA

25 March 1995, 25 March 1998

[1998] NSWCA 127

NEGLIGENCE — Motor vehicle accident — negligent failure of driver to control vehicle affected by wind gusts

Motor Accidents Act 1988 — s44 — challenge to certification of notice of claim

Sheller JA This is an appeal from a decision of Master Greenwood given on 17 November 1995. The respondent, who was the plaintiff, Salvatore Grasso, was the passenger in a Toyota truck belonging to the appellant, Lanci Plant Hire Pty Ltd, when it was being driven by Mr Grasso's son, Santo. They were driving in an easterly direction along Sydney Road in the left hand lane intending to turn left at the intersection with Concord Road. The weather was windy with gusts reported by the weather bureau of up to 78 kilometres an hour. Indeed the gusts may have been even higher than that.

The vehicle was proceeding at between 55 to 60 kilometres an hour approximately half metre from the kerb when struck by a sudden gust of wind. It struck the kerb and then collided with a telegraph pole. The respondent suffered a gross compound dislocation of his left ankle which ultimately led to amputation of his leg below the knee. His right leg and ankle were also injured in the accident. He sued the owner of the car, which is the appellant, alleging that its servant or agent, Santo Grasso, so negligently drove the car that it ran off the road and hit the telegraph pole thereby causing the respondent's injury. Master Greenwood found in favour of the respondent.

Two experts gave evidence, Mr Gillies for the defendant and Mr Buckland for the plaintiff. Mr Gillies calculated that the driver would have had less than a second as the gust hit his vehicle to take any action to avoid collision with the kerb which resulted in the driver's losing control of the vehicle. According to that expert, to manoeuvre in the circumstances was virtually impossible. The driver, Santo Grasso, did not give evidence. There was apparently some suggestion from the bar table that he was unavailable but no evidence was put on to that effect.