Johnson v The Nominal Defendant [2003] NSWCA 153

New South Wales Court of Appeal

CITATION : Johnson v The Nominal Defendant [2003] NSWCA 153 HEARING DATE(S) : 13/06/03 JUDGMENT DATE : 13 June 2003

JUDGMENT OF : Meagher JA at 31; Beazley JA at 32; Ipp JA at 1 DECISION : Appeal dismissed with costs.

CATCHWORDS : NEGLIGENCE - Diesel slick on road - Whether inference of negligence of driver/owner of unidentified motor vehicle can be drawn. ND Incorporated Nominal Defendant v Knowles [1987] VR 138 Jones v Dunkel (1959) 101 CLR 298 CASES CITED : Nominal Defendant v Hall (2001) 34 MVR 553 Padget v Motor Accidents Insurance Board (1996) 23 MVR 411; (1997) 26 MVR 147 Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121 West v Government Insurance Office of New South Wales (1981) 148 CLR 62 PARTIES : Harry Michael Johnson (Appellant) The Nominal Defendant (Respondent) FILE NUMBER(S) : CA 40966/02 COUNSEL : B Gross QC/T Meakes (Appellant) R Stitt QC/H Silvester (Respondent) SOLICITORS : Carneys Lawyers (Appellant) Abbott Tout (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT DC 9710/01 FILE NUMBER(S) : LOWER COURT Sorby DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40966/02 DC 9710/01

MEAGHER JA BEAZLEY JA IPP JA

Friday, 13 June 2003 HARRY MICHAEL JOHNSON v THE NOMINAL DEFENDANT Judgment 1 IPP JA: This is an appeal against a decision of Sorby DCJ given in an action in which the appellant claimed damages for personal injuries from the Nominal Defendant, the respondent in this appeal. 2 The appellant was injured on 26 October 1998 at about 6 am when, while travelling along Euston Road Alexandria, his motor cycle skidded on a diesel slick on the road. 3 The trial judge found: "[I]n some way, but arising out of the use of a motor vehicle as defined, a quantity of diesel came to be on Euston Road near the roundabout and the presence of the diesel on the road caused the Plaintiff's motorcycle to lose traction, go out of control and cause him injury". 4 To succeed against the respondent, the appellant had to establish negligence on the part of the owner or driver of an unidentified motor vehicle. This was the fundamental issue at the trial. His Honour found that all other requirements to fix liability on the Nominal Defendant were established. 5 Sorby DCJ correctly noted that the appellant had to establish that the spill of diesel on the roadway was of a kind that did not ordinarily occur without negligence: Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121 at 134. 6 A fire brigade officer inspected the roadway shortly after the accident and Sorby DCJ accepted his description of the scene. The officer said that the spillage was on the northbound lane closest to the middle of Euston Road which had dual carriageways both ways. He said that the spillage did not take up the whole of the roadway, but was one metre from the median line, about a half a metre wide and extended from the roundabout northwards along Euston Road in a northerly direction for twenty to thirty metres. He said that the passage of traffic had spread the slick further in a narrow strip and he could not determine the quantity of the spill. 7 There was no other evidence that cast any light on the quantity of the spill, and the precise position of the spill was not before the Court. Accordingly it is not possible to draw any significant inference from the amount of spillage and the fact that it extended up the road. 8 No expert evidence was led as to how the diesel might have been spilt on the road and there was no expert evidence as to the characteristics of vehicles that use diesel and how diesel is stored and used in vehicles. 9 The appellant drew attention to the fact that, prior to the accident, he was travelling northwards along Euston Road and encountered the diesel on the roadway after passing through the roundabout. The diesel caused him to fall. He argued that the close proximity of the diesel to the roundabout made it likely that the diesel came from a vehicle that also had come through the roundabout. 10 He argued that the likelihood was that the initial movement of the vehicle to the right, as it followed the roundabout, followed by the opposite turning to the left, as the vehicle left the roundabout, would have caused the diesel to spill had the fuel tank not been properly sealed. 11 The appellant put forward what was said to be a less likely, but the only other reasonably possible, alternative scenario. This was that the diesel came from a load of diesel being transported on a vehicle. It was submitted that if that were the case, the inference would, inevitably, arise that the driver or owner of the vehicle was negligent. The basis for this submission was that it was an obligation of a driver or owner to check a load, such as diesel, to ensure that it was in a secure state. 12 Judge Sorby referred to the two alternatives suggested by the appellant as to how the diesel came to be on the road. He said: "The Plaintiff has put before me a number of alternatives as to how the diesel got from the motor vehicle to the road. The law does not either require or authorise a trial judge to choose between alternatives or guesses where the possibilities are not unlimited on the ground that one guess is more likely than another or others ( West v Government Insurance Office of NSW (1981) 148 CLR at 66). As Dixon CJ said in Jones v Dunkel [(1959) 101 CLR 298] a Plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an 'affirmative conclusion' from the circumstances passed in evidence and one which they establish to the reasonable satisfaction of a judicial mind. The Plaintiff has to establish the fault of the owner driver of a motor vehicle which cannot be identified. What I have been asked to do is to choose from a number of alternatives, without supporting expert or other evidence, as the most probable cause of the diesel spill. I am unable to reach an 'affirmative conclusion' from the circumstances that the unidentified motor vehicle spilt diesel fuel in such a way as to contribute negligence." 13 Mr Gross QC, who appeared for the appellant this morning at the appeal, submitted that the reasoning of the learned judge was defective. In essence, he submitted that, having accepted that there were only two possible scenarios to be considered, both of which led to an inference of negligence, it did not matter what the degree of possibility was attaching to each. 14 There is force in this argument, and I accept that the reasoning apparent from the passages to which I have referred is questionable. Be that as it may, I am satisfied that there are not only two alternative scenarios from which a decision had to be made. 15 There is, in my opinion, a third alternative and that is that the diesel was spilled as a result of a crack somewhere in the vehicle concerned, whether in the fuel tank or the fuel line or somewhere else. 16 It is possible, it seems to me, for there to have been a crack somewhere in the fuel tank or in the fuel line of the vehicle concerned, not necessarily at the bottom of these containers but somewhere on the upper side or on the top. It may well be that when the vehicle moved in the different directions required to pass through the roundabout, the fuel within the vehicle swished about and some passed through the crack. The diesel would stop moving about and would cease escaping as the vehicle stabilised. This scenario would result in a puddle of diesel on the roadway. 17 Mr Gross submitted that it was far more common for fuel to escape from a defectively sealed fuel tank than from a crack within a part of the vehicle. 18 It is common knowledge that there are some vehicles on the road today that contain flaps underneath the fuel tank cap. This flap is capable of closing off, at least to some degree, the fuel line. There was no evidence as to how likely it is for fuel to escape from such a vehicle if the fuel cap is not replaced, or if it is defectively replaced, or if it simply does not fit properly. There was also no evidence as to how many vehicles there are on the road, using diesel fuel, which are fitted with such flaps. 19 For these reasons it is very difficult to determine the degree of possibility, on the one hand, of the diesel coming from an inadequately closed fuel cap, or from a crack somewhere in the vehicle, on the other. As there was no evidence as to any of these matters, the Court is left to speculate. 20 But there is another and more serious difficulty that, in my opinion, is fatal to the appellant's argument. This difficulty arises out of the fact that it is not known who filled the vehicle concerned, with fuel, prior to it escaping. 21 There are of course many service stations in New South Wales, if that is where this vehicle was filled, which are self-service outlets, and it may well be that the driver of the vehicle was the person who filled the vehicle with diesel and, arguably, did not replace the fuel cap properly. 22 But there are also many petrol and diesel outlets in New South Wales which are not self-service, and where attendants fill the vehicles concerned with fuel and replace the fuel caps themselves. I think it fair to say that it is common knowledge that sometimes the fuel at fuel stations which are not self-service is slightly more expensive than at others and this is the cost of paying for the attendant to fill up the tank. 23 Mr Gross attempted to meet this situation by submitting that it was the duty of a driver of a vehicle, filled up by an attendant, to emerge from the car after the filling up exercise is complete and to check the fuel cap to make sure that it has been properly sealed. 24 The thrust of this submission is that there is a non-delegable duty on a driver to ensure that a fuel cap properly seals the fuel tank. I am quite unable to accept this submission. In my opinion, a driver is perfectly entitled to rely on the attendant at a service station to put back the petrol cap without the driver, personally, having to check it. Take the following situation as an illustration. It is not uncommon for an owner of a vehicle, when having its regular service, to request the service station concerned to fill up the vehicle once the service has been completed. To suggest that, on collecting the vehicle, the owner or driver must go and check the fuel cap to ensure that it has properly sealed the fuel tank, in my opinion, is far fetched. 25 So, even on the scenario that the appellant submits is the most probable, there is no necessary inference of negligence that can be drawn. In reality, the first (said to be the most likely) scenario postulated, is two scenarios. The first is the vehicle being filled by an attendant with fuel, and the second is where the driver fills the vehicle. This means that there are at least four scenarios that could have caused the diesel to be on the roadway. Two are consistent with negligence. Two are not. In my opinion, there is no possible basis on which the Court can decide which of the four is the most likely. 26 Mr Gross has referred to a number of cases which he submitted supported his proposition that negligence should be inferred. All these cases depended on their own particular facts. For example, in Incorporated Nominal Defendant v Knowles [1987] VR 138, which involved a piece of timber on the bitumen, there were many facts which supported the proposition that the timber must have come off a truck and was most unlikely to have been put on the road by a pedestrian. On a reading of the case itself, it is quite apparent that no general principle can be drawn, as it was a case dependent on its own circumstances. 27 Then there is the Tasmanian case of Padget v Motor Accidents Insurance Board (1996) 23 MVR 411; (1997) 26 MVR 147. In this case the argument was that an inference of negligence should be drawn from the fact that an oily substance had been found on the road. The issue was simply whether, on these facts, there was an arguable case. The Court, both at first instance and on appeal, held that it was open for an inference of negligence to be drawn, but they also emphasised that a Court could well find that the oily substance was on the road as a result of conduct that was not negligent. It all depended on the actual circumstances established at the trial. 28 In Nominal Defendant v Hall (2001) 34 MVR 553, Hodgson JA similarly held that it was open for a finding to be made of negligence where oil on the road could be traced to a service station close by. There again, his Honour was dealing only with whether an inference could be drawn and not whether an inference should be drawn. 29 Accordingly, I do not think that any of the cases relied on by Mr Gross are of any substantial assistance in this case. 30 In my opinion, on the facts, it is simply not possible to draw any inference of negligence on the part of the driver of the unknown vehicle. I would dismiss the appeal with costs. 31 MEAGHER JA: I agree. 32 BEAZLEY JA: I agree. 33 MEAGHER JA: The order of the Court therefore is that the appeal is dismissed with costs. **********