Dominello v Dominello & Anor; Dominello v The Nominal Defendant & Anor [2009] NSWCA 95

New South Wales Court of Appeal

CITATION: Dominello v Dominello & Anor; Dominello v The Nominal Defendant & Anor [2009] NSWCA 95

HEARING DATE(S): 27 November 2008

JUDGMENT DATE: 8 May 2009

JUDGMENT OF: Beazley JA at 1; Macfarlan JA at 2; Handley AJA at 38

No 40045/2008 1. Appeal allowed with costs against the first respondent, the Nominal Defendant. No order as to the costs of the second respondent. 2. Judgment of the District Court in favour of the Nominal Defendant with costs set aside. 3. In lieu thereof judgment for the Plaintiff against the Nominal Defendant for $2,775,035 with costs with effect from 14 December 2007. 4. Liberty to any party to apply by notice of motion filed within 14 days for a variation of these costs orders. 5. Any such notice of motion to be made returnable before the Registrar for directions. DECISION: No 40048/2008 1. Appeal allowed with costs against the first respondent. No order as to the costs of the second respondent. 2. Judgment of the District Court against the first defendant with costs set aside. 3. In lieu thereof judgment for the first defendant with costs. 4. Liberty to any party to apply by notice of motion filed within 14 days for a variation of these costs orders or for orders for the repayment of any moneys paid under the judgment set aside. 5. Any such notice of motion to be made returnable before the Registrar for directions. 6. Cross claims dismissed with no orders as to costs.

CATCHWORDS: TORTS - negligence - road accident cases - diesel oil spill on road - whether motor vehicle being driven at an excessive speed -relevance of advisory speed sign - causation of loss - whether necessary to prove on balance of probabilities that accident would have been avoided if no negligence - TORTS - negligence - road accident cases - claim against Nominal Defendant - inference to be drawn as to origin of diesel oil spill on road