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. In the result a statement made by Santo Grasso to the police was put in evidence. The Master accepted those parts of his statement where Santo Grasso made admissions which could be inferred to be contrary to his interest and parts which supported or corroborated the evidence given by the respondent. In so far as statements were not supported by the respondent's evidence, the Master gave no weight to them for the purpose of his judgment. The Master said: "The evidence which I do accept is that the day in question was windy and there was occasional rain. The vehicle involved in this accident had been during the course of its travel along the Expressway subject to wind gusts. The driver had as a result lowered his speed. He was an experienced driver, having in his 2 UNREPORTED JUDGMENTS statement conceded that he had driven the vehicle every day for four years. From this I infer that he knew its propensities and would have known how it behaved in wind. During the course of the travel along the Expressway when wind had affected the truck the driver had slowed down. When he turned into Sydney Road ahead of him was a vehicle which deviated from the number two lane to the number one lane. This ought to have warned the defendant driver that he was about to come into an area of stronger wind or approaching gust. His answer to this was to move into the number | or left lane at the speed of 55 or 60 kilometres per hour preparatory to making a left hand turn. Available to him was the next lane, the number two lane from which he was also entitled to make his left hand turn. The evidence is that the traffic was sparse and it was possible at that stage for the plaintiff to travel in the number two lane and I infer even if blown out of the lane, would have been able to do so without inconveniencing other traffic." The Master also referred to part of Mr Buckland's report in which Mr Buckland referred to assumptions of speed and measurements of deviation that Mr Gillies had calculated. Mr Buckland observed that those values only applied if no corrective action was applied by the steering wheel. He said that given the driver had prior warning of existing gusty conditions he, Mr Buckland, was of the view that a driver reaction time of less than one second could be assumed. Naturally, the slower the speed of the vehicle, the slower will be sideways deviation, therefore, the driver has more time in which to react and apply a correction. The Master said: "Tt is obvious from the reports of both experts, therefore, that travelling in the inside lane at a speed between 55 and 60 kilometres per hour and not being prepared for a sudden wind gust the defendant had no chance of avoiding the accident." By the defendant the Master meant the driver of the defendant's vehicle. He continued: "However, in light of the fact that the plaintiff was an experienced driver [by the plaintiff the Master meant the driver of the defendant's vehicle] and must have seen the other vehicle ahead having problems with maintaining a steady line, had the defendant driver remained in the centre lane then the vehicle would have been capable of being controlled in sufficient time and whilst it may have continued with a sideways movement such that it would not have struck the kerb or be worried by any vehicles in the vicinity..." The Master said he was aware that the defendant driver had suggested in his statement there was a vehicle behind him. He said: "This is part of the evidence to which I give little weight, as this alone seems to have little bearing on the defendant's options." In the light of that, the Master said he had formed the view that the defendant driver was guilty of negligence in that he failed in his duty of care to his passenger as an experienced driver knowing that there were wind gusts and having seen a vehicle affected by a wind gust he ought to have travelled at a slower speed in the middle lane where he could have controlled his vehicle. On the evidence of Mr Buckland the reaction time ought to have been less than one second, but even so, from the central lane the reaction time to wind gusts as suggested by the defendant's expert, Mr Gillies, would have enabled the driver to avoid the accident. It followed therefore that the defendant was guilty of negligence. URJ LANCI PLANT HIRE PTY LTD v GRASSO (Sheller JA) 3 The appellant filed a notice of appeal in which there are set out eight grounds. The first four centre round a contention that the Master should have found that the statutory notice of claim form had not been verified and, accordingly, that the Master erred in not dismissing the proceedings. These grounds of appeal were not, I think, understandably, pressed with much enthusiasm. In my opinion, they are completely lacking of any merit. They turn upon s44 of the Motor Accidents Act 1988 which requires that a claim form be accompanied by a statutory declaration by the person claiming to have been injured. In this case, such a statutory declaration appeared to have been made and signed by the plaintiff and respondent, Salvatore Grasso. The defendant tendered that document as part of its case. However, during the course of cross-examination, the plaintiff was asked a number of questions which led him to say that he had not read the document. This was scarcely surprising as English is not his mother tongue and he does not read English. He was asked whether he remembered who brought the document. He said he could not remember because at the time he had a lot of pain. He was asked did he remember any conversations with his solicitor about a document like that and he said no. He was asked did he remember any occasion in which his solicitor read out the document to him and he said no. It was on the basis of that evidence that this point was taken before the Master. No defence had been filed to suggest that the statutory declaration, or the form that it took, or the way that it was executed, gave rise to any defence nor was any attempt made to amend the defence to rely upon this ground. In his reasons for judgment the Master said that there was not sufficient evidence before him to reach a conclusion that the claim had not been properly verified. I would have thought, myself, that that finding would be the end of the matter. However, grounds | to 4 were pressed on behalf of the appellant. In my view, those grounds fail in the first place because at no stage was a defence filed that relied upon them, in the second place, because they are not justified by the evidence before the Master and, in the third place, because no basis has been shown for challenging the Master's finding about them. Accordingly, in my opinion, grounds | to 4 fail. The remaining grounds of appeal are directed to the Master's finding that the defendant was negligent. Two of them, 5 and 7, go particularly to a submission that the Master erred in not attaching any weight to the statements made by the driver which were not supported by the plaintiff in his evidence. No ground was advanced before us to suggest that in any way the Master erred in not attaching weight to the statements beyond the limited parts of them to which he referred and to which I have referred. Accordingly, in my opinion, grounds 5 and 7 fail. Ground 8 was not pressed. This brings me back to the main point of contention namely that the Master erred in his finding of negligence. As best I can understand the submissions that were put to us, they depended upon an assertion that the vehicle had been subjected to wind, up to the time shortly before the accident, from the north or the north-east or the north-west. On this basis it was said that the driver should not have foreseen the possibility that there would be a gust of wind from the south. With all respect, I regard this submission as having no substance whatever. The conditions were conditions of wind gust which a careful and prudent driver would have recognised and taken steps to counter in the way in which countless 4 UNREPORTED JUDGMENTS drivers must do in such conditions. The Master carefully pointed out the sort of steps that could have been taken and I can see nothing wrong in what he said about those matters. He found that there was another vehicle ahead of the defendant's vehicle and he said that if due attention was being paid to the way that vehicle was reacting to the wind conditions, the driver of the defendant's vehicle would have been well aware of the conditions and if acting prudently would have taken steps to counter them. The appellant relied upon some evidence given by the plaintiff, who it was said was an experienced driver, that in his opinion there was nothing that the driver of the defendant's vehicle could have done to avoid the accident. This was only part of the evidence. The Master was not required to accept this opinion. It does not touch upon the evidence of Mr Buckland or the evidence about the vehicle ahead which led the Master to come to the conclusion that he did. It was suggested that there was no evidence that the driver of the defendant's vehicle saw the vehicle ahead. I can only say that if that were the case it would only demonstrate that he was not paying proper attention to the traffic in his vicinity. In my opinion, the Master's conclusions were entirely correct and I agree with them. Accordingly, ground 6 in the notice of appeal fails. In my opinion, the order of the Court should be that the appeal is dismissed with costs. Cole JA I agree. Stein JA I also agree. Sheller JA The order will be as I have suggested. COUNSEL ADDRESSED ON COSTS The respondent has tendered, and the document will be marked exhibit A, an offer of compromise dated 28 November 1997 and asks that the costs of the appeal be costs on an indemnity basis. Mr Tuckfield, who appeared for the appellant, said he had no instructions about the receipt of that offer for compromise. In the circumstances, the order of the Court will be that the appellant pay the respondent's costs on an indemnity basis but that that order not be taken out for 24 hours during which time if there is any material that the appellant wishes to put before the Court to support an argument that an order for indemnity costs should not be made, it will have an opportunity to do so within the 24 hour period. That material Mr Tuckfield can be sent to my Associate rather than to the Registry. Appeal dismissed with costs. Counsel for the appellant: J H Tuckfield QC/M J Stevens Solicitors for the appellant: Sun Alliance & Royal Insurance Aust Ltd Counsel for the respondent: C M Simpson Solicitors for the respondent: Nescis