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 LEGISLATION CITED: Motor Accidents Compensation Act 1999 Uniform Civil Procedure Rules 2005 CATEGORY: Principal judgment Allianz Australia Insurance Ltd v GSF Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 Dunleavy v Peak [2009] NSWCA 72 Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268 CASES CITED: Flounders v Millar [2007] NSWCA 238; (2007) MVR 53 Gett v Tabet [2009] NSWCA 76 Grant v Sun Shipping Co Ltd [1948] AC 549 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 March v Stramare (E&MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Naxakis v West General Hospital [1999] HCA 22; (1999) 197 CLR 269 Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870 Kathleen Mary Dominello (Appellant 40045/08 ) The Nominal Defendant (First Respondent 40045/08) PARTIES: Joseph Dominello (Second Respondent 40045/08) Joseph Dominello (Appellant 40048/08) Kathleen Mary Dominello (First Respondent 40048/08) The Nominal Defendant (Second Respondent 40048/08) FILE NUMBER(S): CA 40045/2008; 40048/2008 A S Morrison SC/R Royle (Appellant 40045/2008) B J Gross QC/K Kelleher (First Respondent 40045/2008) COUNSEL: R R Bartlett SC (Second Respondent 40045/2008) R R Bartlett SC (Appellant 40048/2008) A S Morrison SC/R Royle (First Respondent 40048/2008) B J Gross QC/K Kelleher (Second Respondent 40048/2008) Stacks Goudkamp (Appellant 40045/2008 and First Respondent 40048/2008) SOLICITORS: Sparke Helmore (Appellant 40048/2008) Ferguson Bolton (Respondent 40045/2008 and Second Respondent 40048/2008) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 2987/2003 LOWER COURT JUDICIAL OFFICER: Balla DCJ LOWER COURT DATE OF DECISION: 13 December 2007 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40045/08 CA 40048/08 BEAZLEY JA MACFARLAN JA HANDLEY AJA FRIDAY 8 MAY 2009 KATHLEEN DOMINELLO v THE NOMINAL DEFENDANT & ANOR JOSEPH DOMINELLO v KATHLEEN MARY DOMINELLO & ANOR Judgment 1 BEAZLEY JA: I have had the benefit of reading in draft the reasons of Macfarlan JA and Handley AJA. I adopt the comments of Macfarlan JA in [2] below in relation to Handley JA's reasons, conclusions and orders in respect of the Nominal Defendant. I agree with Handley JA's orders in respect of the first defendant but in that regard agree with the reasons of Macfarlan JA. 2 MACFARLAN JA: I have had the benefit of reading in draft the judgment of Handley AJA. I gratefully adopt his Honour's description of the facts and circumstances relating to this appeal. I agree with his Honour's judgment insofar as it relates to the liability of the Nominal Defendant, including his Honour's reasoning and conclusion as to the Notice of Contention filed by the Nominal Defendant. I agree also with his conclusion as to the claim against the first defendant but do not agree with the reasons he gives. I accordingly proceed to express my own views on that topic. 3 It is convenient first to deal with the case against the first defendant on the basis of the findings made by the primary judge. I will then consider the challenges to those findings made by the first defendant and whether my views as to the outcome of those challenges affects my conclusions. 4 Handley AJA notes at [47] that the primary judge found that "a driver taking reasonable care would have been driving at 75 to 80 kph at the point where the first defendant lost control of the van". I disagree with his Honour's conclusion in [54] that that finding did not establish the converse, that is, "that it was a breach of duty to be travelling at more than 80 kph". 5 In my view the corollary of the primary judge's finding was that the first defendant was failing to take reasonable care by driving at the speed in excess of 80 kph (that is, 100 kph) at which her Honour found his van was travelling. It is apparent from the context in which the relevant finding was made by her Honour that it was intended to be a finding that the first defendant had acted negligently by driving unreasonably fast. The finding was made under the heading "Was this a Safe Speed for the Road Conditions?" which immediately followed the section of the judgment headed "What Speed was the First Defendant Travelling?". After the section as to whether the speed was a safe one, her Honour proceeded to consider whether there was a causal connection between the speed at which the first defendant was driving and the plaintiff's injury and, having answered that question in the affirmative, to find a breach of duty on the part of the first defendant. 6 As noted by Handley AJA in [48], the primary judge also found that the first defendant "would have regained control of his van almost immediately if he had been travelling at 75 to 80 kph". 7 Assuming the correctness of these findings, I agree with the primary judge's conclusion that the plaintiff's injury was materially contributed to by a breach of duty by the first defendant, namely, driving at a speed in excess of the speed at which a driver taking reasonable care would have been driving. If he had not been driving at an excessive speed the first defendant would, on these findings, have been able to regain control of his van after it skidded on the oil and the injury to the plaintiff would have been avoided. It is, with respect, not to the point to say, as Handley AJA does, that the first defendant "would have negotiated this curve in safety, with a substantial margin, but for the presence of the diesel" (at [55]) and that "the wet conditions alone would not have caused the first defendant to lose control on that curve" (at [63]). 8 The fact that there was no basis for the first defendant to expect that there would be diesel oil on the road at the time did not in my view break the chain of causation between the first defendant's driving at an excessive speed and the injury to the plaintiff. Reasonable drivers drive at the speed they do, not simply to enable them to keep their own vehicle on the road but to enable them to deal with many, but regrettably not all, of the multitude of misfortunes that can impact on vehicles driving on the road, whether as a result of the negligence of others or simply accident. If the first defendant had not been driving faster than the speed at which a reasonable driver would have been driving, the presence of diesel oil on the road would have been one misfortune with which he would, on the basis of the primary judge's findings, have been able to deal, with consequent avoidance of injury to the plaintiff. In these circumstances, both the first defendant's excessive speed and the diesel oil on the road "caused or materially contributed" to the plaintiff's injuries (see March v Stramare (E&MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 514). 9 The first defendant's excessive speed and the diesel oil on the road were each necessary conditions for the accident to occur. If one had been absent, the accident would not have occurred (at least not at the time and place that it did). The "but for" test of causation was thus satisfied. March v Stramare at 515-7 indicates that this test still has an important, although limited, role in determining causation. 10 On the other hand, neither condition was sufficient on its own. The diesel oil would not have caused the plaintiff's injuries if a vehicle had not been driven on the road at a speed which was excessive in the circumstances. Likewise, on the basis of the primary judge's findings, the first defendant's vehicle would not have left the road, resulting in the plaintiff's injuries, if there had not been diesel oil on the road causing it to slip. 11 Applying the "common sense" test of causation referred to in March v Stramare I nevertheless consider, that on the basis of the primary judge's findings, each condition caused or at least materially contributed to the plaintiff's injuries. Indeed, the facts of March v Stramare bear some analogy to those in the present case. In that case, a car driver who was under the influence of alcohol and was driving at an excessive speed collided with a truck which had been parked in a position where it straddled the centreline of a six lane road. Both the driver of the car and the person who had parked the truck in the middle of the road were held to have been negligent and to have contributed to the injury suffered by the driver of the car. Neither the negligent driving nor the negligent parking was a sufficient condition because if either had been absent, the accident would not have occurred. Nevertheless, both materially contributed to the accident. 12 Supportive of this approach is the statement of McHugh J in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 that "if a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring" ([27]); and see also Naxakis v West General Hospital [1999] HCA 22; (1999) 197 CLR 269 at [31]). I would add that on the basis of the primary judge's findings the present is not a case similar to Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870 where a party's breach of duty created a "heightened risk" of an accident such as occurred but was regarded as having in fact made no contribution to the occurrence of the particular accident (at [25]). Here, on the primary judge's findings, the first defendant's excessive speed did make such a contribution. Challenges to Primary Findings 13 The first defendant challenged three significant primary findings, namely: (a) That the first defendant was driving "at around the speed limit, 100 km an hour, as he lost control of the van". (b) That a driver "taking reasonable care would have been driving at 75 to 80 kph at the point where the first defendant lost control of the van". (c) That if the first defendant had been driving at 75 to 80kpm at the point where he lost control of the van "it is likely that he would have regained control of the van almost immediately …". The first defendant's speed 14 As to the first of these challenges, it is sufficient for present purposes to conclude, as I do, that the primary judge was justified in finding that the first defendant was driving at a speed substantially in excess of 75 – 80 kph. 15 Her Honour recorded that the first defendant had told the police after the accident that he had been travelling at no more than 90 kph. In his evidence in chief in the proceedings he said that he travelled from Grafton at about 85 to 90 kph. He said that when he reached the top of the crest he took his foot off the accelerator. He asserted that the gears of the van kept its speed constant, or even lowered it, but agreed in cross-examination that it was possible that the van was increasing in speed as it went down the hill. Her Honour found that its speed was in fact increasing and allowed for that fact in concluding that the van was travelling at about 100 kph when the first defendant lost control of it. Her Honour heard the first defendant examined and cross-examined about the speed at which he was travelling and there is no basis in my view for interfering with her Honour's rejection of his evidence that he was not travelling at more than 90 kph or her finding that the speed of the van was increasing as it went downhill. 16 To conclude that the speed of the first defendant's van was about 100 kph, the primary judge must have considered that the van increased speed by up to 10 kph as it went down the hill. Ten kph was at the upper range of the speed increase which the experts thought might have occurred. Whether her Honour was correct as to the increased speed she assumed need not however be determined as it is clear that the first defendant was driving at at least about 90 kph. This is in my view a sufficient foundation for the first step towards her Honour's conclusion as to breach of duty. Was the first defendant driving at a speed which was reasonable in the circumstances? 17 The second challenged finding was largely based by her Honour on the presence of an 85 kph advisory sign. The Road Users' Handbook applicable at the relevant time stated that advisory speed signs "show the maximum speed that is safe in good conditions". As her Honour recognised, there was expert evidence before her that such signs tend to indicate a conservative speed. Nevertheless, the existence of the sign was significant evidence upon which her Honour was entitled to act in forming a view about the speed which was reasonable in the circumstances. The first defendant gave evidence that he did not see the sign but agreed in cross-examination that "he would not want to be travelling any faster than such a sign and that it would be appropriate to be driving a little below that speed bearing in mind the weather and the circumstances of the van" (Judgment p 7). 18 Her Honour identified a number of reasons why the conditions applicable to the first defendant's driving were not the "good conditions" contemplated by the Road Users' Handbook. These were that the road was wet; it was night and there was no street lighting; the first defendant was driving a van which had a tendency to under-steer and the performance of the van was impaired by the fact that it was fully loaded and towing a trailer which weighed, with its load, around 300 kilos. 19 In these circumstances, her Honour's finding to the effect that a reasonable driver in the situation of the first defendant would have been driving no faster than 75 – 80 kph was in my view well-founded. Whether the first defendant would have been able to regain control 20 The third finding in question was that it was likely that the first defendant would have been able to regain control if he had been driving at 75 – 80 kph when the van slipped on the diesel oil. 21 The evidence did not in my view warrant this conclusion which was effectively one that on the balance of probabilities the first defendant would have been able to regain control at the lower speed. On the other hand, the evidence did demonstrate that there was a prospect that if the first defendant had been driving at 75 - 80 kph he could have regained control and avoided the accident. However, for reasons to which I will come, the existence of this prospect was not sufficient to support her Honour's ultimate finding that the excessive speed at which the first defendant was driving materially contributed to the plaintiff's injuries. 22 As her Honour found, the ability of a driver to regain control of a vehicle in a situation such as that in the present case is "largely dependent on the speed of the vehicle". Both experts agreed that the faster a vehicle is travelling the lower are the chances of the driver regaining control which has been lost. 23 Her Honour concluded that the expert evidence as to whether the first defendant would, if driving at a lower speed, have regained control was of limited relevance because it was not based on any studies relating to the consequences of diesel oil on a wet roadway. She said that she nevertheless took it into account along with other evidence. 24 In his report of 1 June 2007, Mr Joy, the expert called by the plaintiff, said: "All other things remaining equal, it is in my opinion likely that had [the first defendant] travelled at a speed 5 km/h to 10 km/h slower [than 90 km/h], the critical speed at the point where traction was lost would not have been exceeded and the vehicle would therefore not have crashed". 25 In cross-examination however, the following exchange occurred: "Q. Of course if travelling at 50 kph there is an equal possibility that he never would have regained control of the vehicle? A. I can't refute that." 26 That answer in my view precluded Mr Joy's evidence being used to found a conclusion that on the balance of probabilities the first defendant would have regained control if he had not been travelling at an excessive speed. 27 Mr Jamieson, the expert called by the first defendant, described in his report the difficulties that the first defendant would have faced in regaining control after his vehicle commenced sliding but did not relate his comments to the speed at which her Honour found a reasonable driver would have been driving. In cross-examination, he was asked whether he agreed or disagreed with the answer given in cross-examination by Mr Joy and quoted in [25] above. He said that he agreed. 28 Her Honour appears to have relied for her conclusion on evidence that Senior Constable Szlicht and Mr Toovey (who was a member of the State Emergency Service) were able to regain control of their vehicles after they slid on the oil. The first defendant however rightly pointed out respects in which the abilities of these two persons to regain control were significantly better than that of the first defendant. 29 Senior Constable Szlicht had been warned of a possible diesel oil spillage and approached the area with caution. He was travelling at about 60 kph "or a little bit over" when his vehicle commenced to slide. Mr Toovey was a professional driver who worked for Greyhound buses. He had had experience of "sliding out on slippery substances on roadways" and had had training in dealing with such occurrences. His vehicle was travelling at only about 50 kph when it commenced to slide. 30 In these circumstances, the fact that these persons were able to regain control of their vehicles did not in my view provide any reliable guide as to whether the first defendant would have been able to regain control of his van and trailer at 75 – 80 kph. 31 I consider therefore her Honour went too far in finding that the evidence showed that, on the balance of probabilities, the first defendant would have been able to regain control at 75 – 80 kph, although the first defendant's points do not negate the conclusion which is properly available from the evidence of Senior Constable Szlicht and Mr Toovey and of the experts that there was a prospect that the first defendant could have regained control at the lower speed and that the risk of injury to the plaintiff was thus heightened by the excessive speed of his van. Legal principles 32 In Flounders v Millar [2007] NSWCA 238; (2007) 49 MVR 53 Ipp JA (with whom Handley AJA and Hoeben J agreed) demonstrated by reference to authority that the onus always remains on the plaintiff to prove causation and that "the mere fact that a breach of duty has occurred, followed by injury within the area of foreseeable risk, does not necessarily mean that the evidential onus is reversed" (at [34]). His Honour emphasised that what is alleged by the plaintiff must be found to be the "more probable inference" (at [35]). His Honour referred to Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 (at 316G) where Mason P agreed with the proposition that: "The law does not equate the situation where the defendant had materially increased the risk of injury with one where he had materially contributed to the injury" ( Flounders v Millar at [11]). 33 His Honour also said: "16 In Bendix , Mason P emphasised (at 318) that a party who negligently exposes a plaintiff to a risk of injury will not be liable unless the plaintiff can persuade the trier of fact that it was probable that the risk came home. His Honour said that the basal principle remains: "[t]he law never gives judgment in favour of a plaintiff when the only finding is equally consistent with liability and non-liability". Beazley JA held (at 339) that the onus remains on the plaintiff to prove causation on the balance of probabilities and stated: "[t]he onus is not discharged by establishing that a particular matter cannot be excluded as a cause of the injury". Stein JA dissented on the issue of causation ." 34 In these circumstances, the plaintiff's claim against the first defendant must fail because she did not establish, that on the balance of probabilities, that the first defendant would have been able to regain control of his vehicle if he had been travelling at what was found to be a reasonable speed (see also the recent decisions in Dunleavy v Peak [2009] NSWCA 72 and Gett v Tabet [2009] NSWCA 76 at [364 – 389]). There was a prospect that at that lower speed he could have done so, and thereby avoided the accident, but that prospect is not sufficient to show that the increased risk created by his driving at an excessive speed materially contributed to the accident. The position would have been otherwise if the primary judge's finding that it is likely that at the lower speed the first defendant would have regained control could have been supported. 35 My conclusion is consistent with the decision in Chappel v Hart in which it was held, by majority, that a doctor's negligent failure to advise a patient about the possible risks of surgery materially contributed to the injury suffered by the patient during the operation the doctor performed. 36 It was clear on the facts of the case that, on the balance of probabilities, the patient would not have suffered the injury if the required advice had been given because, if the advice had been given, the surgery would either not have been performed at all or would have been performed by a more experienced surgeon. In the hands of a more experienced surgeon the plaintiff would probably not have suffered the injury in question. Each of the members of the majority indicated this to be the case (see Gaudron J at [20], Gummow J at [67] and Kirby J at [99]). In the present case, there was only a prospect, and not a probability, that if the first defendant had not been negligent, the accident would have been avoided. Orders 37 I agree with the orders proposed by Handley AJA. 38 HANDLEY AJA: About 1am on 3 July 2000 a Toyota Hiace van driven by Mr Dominello (the first defendant) ran off the Pacific Highway 16 km south of Grafton and hit a tree injuring Mrs Dominello who was in the front passenger seat. She sued the first defendant and the Nominal Defendant for damages. The trial Judge, Balla DCJ, awarded her $2,775,035 against the first defendant but found for the Nominal Defendant. The first defendant has appealed from the finding of liability, and Mrs Dominello has appealed from the judgment in favour of the Nominal Defendant. The assessment of damages has not been challenged. 39 The first defendant was taking his wife and eight children back to Sydney, and their luggage was in a box trailer being towed by the van. They stopped in Grafton for petrol, drinks and sandwiches and continued. 16 km south of Grafton the highway crosses a crest and takes a reverse curve downhill at a grade of 7-8%, first to the right, and then to the left. The speed limit was 100 kph but there was an 85 kph advisory speed sign. 40 There had been light rain throughout the night, and the road was wet, but it was not raining at the time of the accident. The first defendant lost control of the van on the left-hand curve, when it slid first to the right and then to the left, before running off the carriage way and hitting a tree. 41 The Judge found without "hesitation" that diesel fuel had been spilt on the south-bound lane. Constable Szlicht, who arrived ten to twelve minutes after the accident, and approached with caution at 70 to 75 kph, momentarily lost control of his vehicle on the left-hand curve and it crossed the centre line. Mr Toovey of the State Emergency Services arrived shortly afterwards. He momentarily lost control on the left hand curve at 50 kph and his vehicle also crossed the centre line. 42 The Judge found that a substantial quantity of diesel had fallen from a south-bound vehicle onto "a relatively short section" of the south-bound carriage way. The first defendant encountered this when he drove through the left hand curve. Passing vehicles, and the wet surface then spread the diesel along the highway. 43 Mr Robertson, a tow-truck driver, who arrived before the Police, SES and RTA vehicles (Black 38) drove to near the accident scene (Black 38). At that time the diesel was spread over about 100 metres (Black 46). He later reversed his tow-truck back up the hill and switched on his safety beacon to warn south-bound traffic (Black 38-9). 44 Mr Appleby from the RTA noticed diesel on the south-bound carriage way at the apex or start of the right-hand curve (Black 54, compare 75-6) near the top of the hill (Black 56). RTA staff later spread sand over the south-bound lane to mop up the diesel. It was spread from near the crest where the RTA truck had stopped (Black 72) to the bottom of the hill beyond the accident site (Black 54-5, 56-7, 61, 64, 67, 70-1, 75-6), a distance of 400 metres (Black 64) "where we could actually see something on the road" (Black 65). 45 The tow-truck had backed up to the crest of the hill in the south-bound lane, and would probably have spread diesel back up the road towards the crest. Mr Robertson noticed diesel near the crest when he got out of his truck (Blue 115, compare Black 39) and it was later noticed a little below the crest by the RTA staff. Liability of the first defendant 46 The Judge said that as the first defendant drove downhill into the right hand curve the engine noise increased, that his speed was increasing, and he was travelling at around the speed limit of 100 kph when he lost control. He was travelling too slowly to have lost control simply because the road was wet (Red 59E), and he did so because the diesel made the road surface "very slippery". 47 The first defendant did not see the 85 kph advisory speed sign. According to the Road Users Handbook such a sign shows "the maximum speed that is safe in good conditions". The recommended speed is conservative. He agreed in cross-examination that bearing in mind the weather, and the van with its trailer, he would want to be travelling a little below the advisory speed. The Judge found that "a driver taking reasonable care would have been driving at 75 to 80 kph at the point where the first defendant lost control of the van". 48 There was evidence, which the Judge accepted, that drivers could lose control of their vehicles on the diesel affected areas at relatively slow speeds. The Judge found that the first defendant would have regained control of his van almost immediately if he had been travelling at 75 to 80 kph. She found a causal relationship between the speed of the van, which increased the risk of injury to the plaintiff, and the accident, and held that the first defendant had been in breach of his duty of care to her. 49 Expert evidence was given by Mr Joy for the plaintiff and by Mr Jamieson for the first defendant. Mr Jamieson concluded that the critical or slide off speed on the left-hand curve in dry conditions was about 150 kph, while in "normal" wet conditions it would be about 110 kph (Blue 158). Mr Joy agreed (Blue 68). 50 The Judge was not prepared to accept the experts' opinions about the speed at which a driver would not have lost control on a surface contaminated by a spill of diesel because of the absence of relevant scientific studies (Red 61). This finding was not challenged. 51 The Judge's finding that the first defendant's speed of about 100 kph was a cause of the accident because it increased the risk of injury was fundamentally flawed. It was inconsistent with her findings that "the first defendant lost control of the van because the diesel made the road surface slippery" (Red 59, 63), and that he would not have lost control "simply becaue the roadway was wet" (Red 59). 52 Driving at a higher speed always increases the risk of injury. Driving at 60 kph within the speed limit is more likely to injure somebody in any emergency than driving at 50 kph. It will almost always be more prudent and safer to driver at a lower speed, but this cannot, without more, constitute a failure to take reasonable care. 53 The first defendant could not foresee the presence of the diesel fuel on the left-hand curve and was not required to drive from Queensland to Sydney at a speed which would enable him to meet such conditions with safety. The presence of the diesel would have been dangerous for this van and trailer at much slower speeds. According to Mr Clare the Police vehicle, which had been travelling at 70 to 75 kph, went past sideways: "They'd actually lost it big time" (Black 272, 277). If the first defendant had lost control in the same way the heavily loaded box trailer may have prevented any recovery: (Jamieson Blue 164, 165). 54 The Judge's findings that "It would be more appropriate to be driving a little below" the advisory speed (Red 60) and that a driver "taking reasonable care" would have been driving at 75 to 80 kph (61) do not establish the converse, that it was a breach of duty to be travelling at more than 80 kph. 55 Was it negligent for the first defendant to be driving at the speed limit in the conditions known to him, or reasonably foreseeable? The fact that he was driving at 100 kph would not, without more, have caused a loss of control. He would have negotiated this curve in safety, with a substantial margin, but for the presence of the diesel. 56 Although, but for his speed, the accident would not have happened, this does not establish causation. In March v Stramare (E&MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516 Mason CJ said: "The 'but for' test gives rise to a well-known difficulty … where there are two or more acts or events which would each be sufficient to bring about the plaintiff's injury. The application of the test 'gives the result contrary to commonsense, that neither is cause'. … In truth, the application of the test proved to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury … The cases demonstrate the lesson of experience, mainly, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results … must be tempered by the making of value judgments and the infusion of policy considerations." 57 In the same case Deane J said at 523: "… the mere fact that something constitutes an essential condition (in the 'but for' sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a 'cause' of that occurrence as a matter of ordinary language or commonsense." 58 Similarly in Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268, 276 Dixon CJ, Fullagar and Kitto JJ said: … there will not seldom be cases in which the attention of the jury ought to be called by the Judge to the question whether a particular act or omission, which they may regard as negligent, can fairly and properly be considered a cause of the accident. Such a case came recently before this Court in Skewes v Public Curator of Queensland … a head-on collision had taken place while two motorcars were being driven at a fast rate in a cloud of dust which temporarily almost destroyed visibility. Driver A was on his correct side of the road, driver B on his wrong side. The action was in fact tried by a judge without a jury, but, if there had been a jury, it would clearly in the circumstances … have been open to them to say that both driver A and driver B were negligent in driving too fast, but that the negligence of driver A was not a 'cause' of the collision, which would have happened with the same results if he had been driving at a reasonable speed." 59 In this case it can also be said that, given the findings of the trial Judge, this accident would have happened with the same results if the first defendant had been driving at any speed above 80 kph. His speed of 100 kph was a necessary but not a sufficient condition for this accident. The presence of the diesel was a sufficient cause at any speed above 80 kph. 60 The speech of Lord du Parcq in Grant v Sun Shipping Co. Ltd [1948] AC 549, 563 established that the negligence of one party which would not have caused the plaintiff's injury but for the subsequent negligence of another does not exclude a finding that the earlier negligence was a cause of the injury. As Mason CJ said in March v Stramare (E&MH) Pty Ltd (above) at 512: "… courts readily recognize that there are concurrent and successive causes of damage on the footing that liability would be apportioned as between the wrongdoers. The modern approach is exemplified by Lord du Parcq in his speech in Grant v Sun Shipping Co. Ltd ". 61 In Grant's case the negligence of the ship repairers was a sufficient cause of the fall of the stevedore into the open unlit hatch, as was the later negligence of the ship's officers in failing to detect the source of danger and take appropriate action. 62 The critical question here is whether reasonable care required the first defendant to drive 20 kph below the speed limit so that it was negligent to be driving at more than 80 kph. The Judge's findings do not directly address that question. Moreover the evidence that Mr Toovey and Constable Szlicht temporarily lost control of their vehicles casts doubt on the finding that the first defendant would have avoided this accident by travelling at 80 kph. 63 The accident would not have happened "but for" the unforeseeable presence of the diesel spill. As the Judge found, the wet conditions alone would not have caused the first defendant to lose control on that curve. 64 The advisory speed sign was not there to warn motorists of the presence of diesel fuel on the carriageway. It was there to warn of the curve, but the advisory speed was 25 kph lower than the critical or slide off speed of 110 kph. While driving at or below the advisory speed would have been safe that speed was extremely conservative, and I am not prepared to hold that the first defendant was negligent by driving at more than 80 kph as the judge found, or by driving on the speed limit which would normally have been quite safe. 65 In my judgment the principle established in Grant v Sun Shipping Co. Ltd does not apply in this case. In fact the position of the first defendant is analogous to that of the plaintiff stevedore who was not guilty of contributory negligence despite falling at night into a hatch left open and unlit as a result of the negligence of the ship's repairers and ship's officers. 66 In my judgment therefore the first defendant's appeal succeeds and judgment should be entered for him in the action. Liability of Nominal Defendant 67 The plaintiff's case against the Nominal Defendant was that the diesel fuel had spilled from an unidentified heavy truck as it drove down the left hand curve because a cap on its fuel tank had not been replaced, or properly replaced, after the driver refuelled his vehicle at Grafton. 68 This raised two questions, first, whether that was the more probable inference from the facts that were established, and, second, whether the plaintiff's injuries were within the definition in s 3 of the Motor Accidents Compensation Act 1999 (the Act), and the Nominal Defendant's liability in respect of unidentified motor vehicles in s 34. 69 The Judge was satisfied that at the time the Highway was mainly being used by heavy vehicles fitted with diesel tanks. The outlets where diesel was being sold in Grafton at that time of night were all self-service. A service station attendant could not have been responsible for any failure to properly replace the fuel cap. 70 Paragraphs [29]-[34] are substantially based on her Honour's primary findings which were not challenged. Heavy vehicles are commonly fitted with multiple fuel tanks, generally two, and they can be driven although the cap on one or more of those tanks has not been replaced. When the tanks are full the fuel reaches within an inch or two of the wide filler opening. It can slosh about when the truck is in motion. 71 Constable Szlicht said the diesel at the scene of the accident was consistent with a refuelled vehicle leaving Grafton with an open or partially open fuel tank. This would permit a large quantity of diesel to spill out on what was the first sharp down hill bend to the south. 72 Other possible causes were canvassed in the evidence. The Judge found that it was "unlikely" that diesel could escape from a 4WD because the neck from the filler to the tank in such vehicles is usually about 18 to 24 inches long. Such a vehicle might have an auxiliary tank which was not cross connected, and if that tank was ruptured near the top, the diesel could escape and leave a deposit similar to that encountered by the first defendant. 73 Fuel can also escape from a heavy truck if a tank is holed, or there is a break in the fuel line but neither of these situations was "consistent with" a heavy isolated deposit. A large hole would drain the tank causing the vehicle to rapidly run out of fuel, and a small hole, or broken fuel line would produce a much lighter and longer deposit, or a spray (Black 137). 74 Diesel can also be spilled from a fuel transport vehicle as a result of a crack in the weld of its tank. A hairline crack would allow the fuel to drip out, while a sudden and total failure of the tank would produce a heavy but isolated deposit. It the delivery hose was left in the wrong position fuel could drain from the hose. An isolating valve would limit any spill to the contents of the hose. If the fuel cap was left off the tank in such a vehicle, or was not properly secured, fuel could spill out in the same way and in the same quantity as from an uncapped tank on a heavy truck. Such a tanker could have been filled at a refinery or industrial fuel depot by someone other than the driver. 75 Some heavy trucks have an auxiliary fuel tank that may not be cross connected with the main fuel tanks, although this was unusual (Black 351). A poorly fitted cap could gradually work loose from vibration allowing the fuel to spill out on a bend such as this one. 76 The Judge said that the inference relied on by the plaintiff was only one of many that were available and diesel could escape from vehicles in a number of ways without the negligence of the owner or driver. She therefore held that "it is not possible to say that the spill would not ordinarily have occurred without negligence". 77 She said that if the spillage occurred in the manner contended for by counsel for the plaintiff it could not be said on the balance of probabilities that it had resulted from an act of the driver. The vehicle could have been filled by the previous driver or in a private depot by any employee. 78 Her Honour's analysis of the competing inferences was, in important respects, contrary to undisputed evidence and otherwise flawed. 79 At that time there were no private depots in the Grafton area which carried stocks of fuel for sale to passing vehicles (Wren Black 147). There is thus a significant inconsistency in her Honour's findings. At Red 65 she found that at that time of night all the outlets selling diesel in the Grafton area were self-service but at Red 69 she said that the offending vehicle could have been filled at a private depot by an employee. 80 Heavy trucks which left Queensland with an uncapped or poorly capped fuel tank would either have spilled fuel earlier in the journey or used enough by the time they reached this left hand bend to "reduce markedly" the likelihood of a spillage such as this (Joy Black 350). 81 Heavy vehicles with diesel tanks made up the bulk of the south bound traffic at that time. If these vehicles were refuelled in Grafton this would have been done by their drivers at self-service outlets. 82 It was not suggested that the spillage could have come from an open filler on a commercial fuel tanker and there was no evidence that any of the oil companies had a fuel depot in Grafton. There was evidence about the possibility of a sudden rupture of the tank on such a vehicle but this would have caused a much heavier spill over a longer distance. A crack in the welding of the tank on such a vehicle would not have caused the heavy, but isolated, deposit observed by the witnesses. 83 Another possible source of the spill was an industrial tanker used to refuel earth moving and construction equipment on site (Joy Black 313). There was no apparent reason for such a vehicle to be on the road at this hour of the night. It could have been needed if night work was then in progress to the south, but Mr Wren who drove to Coffs Harbour later that night, did not say anything about work on the Highway to the south. Mr Appleby, the district works supervisor for the RTA, who was responsible for the construction and maintenance of the Highway in his area (Blue 117), was not asked if there was work on the Highway that night. 84 The hypothesis that this spill could have come from a hole, crack, or hose on an industrial tanker driven through this curve shortly before the accident is pure speculation. 85 The hypothesis that the spill came from a fuel tank on a heavy vehicle as a result of a sudden rupture or impact can also be discounted. Mr Wren did not see any broken down truck on the Highway south of the accident site (Black 131, Joy Black 349). 86 Mr Wren saw another diesel spill on the next steep bend on the Highway on the Corindi Range 20 kms to the south (Blue 141). No other diesel spill in the Grafton area was reported to the Police or the RTA that night (Black 57, 105, Blue 119). 87 In my judgment alternative hypotheses that the spill came from a 4WD, an industrial tanker, or from a sudden rupture or weld failure on a fuel tank are either not open on the evidence or are highly improbable. 88 The remaining inference, not excluded by the evidence, is that the spillage came from the failure of a refueller to replace or properly replace the cap on the diesel tank of a heavy vehicle. The Nominal Defendant could only be liable if the refueller was a driver. Contrary to the Judge's view (Red 69) it would not matter if this was a previous driver. It would matter if the refueller was someone other than a driver. 89 Refuelling at Grafton at that hour of the night must have been done by the driver at a self-service outlet. The possibility that the spill at that hour came from an industrial tanker can be discounted for the reasons already given. The possibility that the absent or badly fitted cap was the fault of a refueller in Brisbane, other than a driver, can also be discounted because the fuel in the tanks would have been reduced to a safe level by prior spillage and normal consumption long before this bend. 90 This means that the remaining hypothesis contended for by the plaintiff is more probable than the others, collectively and individually. 91 The presence of the spill on the first significant downhill curve south of Grafton and the absence of a similar spillage on the previous 16 kms, or on the next 20 kms to the south, or on the steep section of the Highway north of Grafton leads to the inference that something happened in Grafton. Something that caused a fuel spill on this reverse bend where the super elevation, first to the right, and then to the left (Blue 40) would cause the fuel to slosh about in the tank. 92 The legal test in such a case is that referred to in Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, 358: … many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. … where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture … But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise. 93 In my judgment the evidence supports the existence of a full fuel tank on a heavy truck with an open filler as the most probable source of this spill. More probably than not the open filler would be the result of the driver's negligence in failing to replace or properly replace the fuel cap. 94 This is an ultimate conclusion which is for the Court, rather than a witness, but if it matters the police officer (Black 125-6), Mr Joy (Blue 51), and Mr Jamieson (Blue 163) all reached the same conclusion. The Act 95 The trial Judge did not have to consider whether the Nominal Defendant was responsible for the negligence of the driver of the unidentified heavy motor vehicle in failing to replace, or properly replace, one of the fuel caps on his vehicle. This was the subject of a Notice of Contention from the Nominal Defendant and must now be considered in view of the findings proposed. 96 Section 34(1) of the Act provides: "(1) An action for the recovery of damages in respect of the death of or 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 on a road in New South Wales may, if the identity of the vehicle cannot after due inquiry and search be established, be brought against the Nominal Defendant". 97 Para (a) of the definition of injury in s 3 reads: "… means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle, or (ii) a collision, or action taken to avoid a collision, with the vehicle, or (iii) the vehicle's running out of control, or (iv) such use or operation by a defect in the vehicle … " 98 This requires the injury to be "caused by the fault of the owner or driver of a motor vehicle", and "in the use or operation of the vehicle". The latter is defined in s 3 as including "the maintenance … of the vehicle". 99 The first causal requirement is that the injury must be caused by fault "in the use or operation of the vehicle". The second, which includes a temporal element, is that it must be "the result of and … caused during" one of the activities, events, or situations referred to in the subparagraphs. 100 Mr Gross QC, for the Nominal Defendant, submitted that the definition required the injury and the fault to both occur during one of those activities, events, or situations, and this had not happened. 101 In my judgment there is no such temporal requirement. The relevant requirements are for the injury to be caused by the fault of a relevant person (owner or driver), in a relevant activity (use or operation) but only if that injury was caused during another relevant activity, event, or situation (the subparagraphs). 102 On the findings proposed these requirements are satisfied. The inferred fault is that of the driver of the unidentified vehicle and it occurred in the use of the vehicle. Refuelling a vehicle, which enables it to be driven, is part of its maintenance, and part of its use. Although the vehicle is not being driven while it is being refuelled, it is being used to receive and hold the fuel just as it may be used to receive and hold chattels or passengers. The plaintiff's injury was the result of the driving of the unidentified vehicle, and caused when the driving caused the spill. The injury was also caused by the driver's fault during the driving when he failed to remember that he had not replaced the fuel cap and stop his vehicle to do this. 103 The injury was also caused by the driver's fault during the driving of the vehicle by a defect in the vehicle, its open fuel tank. The fuel cap is an important part of the vehicle because it can prevent loss of fuel by spillage and its contamination by airborne material. A vehicle without a fuel cap has a defect and it has another if an available fuel cap is not fitted, or not properly fitted. 104 The Court was referred to a number of reported and unreported decisions on the meaning and application of these definitions. The facts of those cases are remote from the facts of the present case. Most of the cases explore the boundary between the liability of an owner under the Act, and his liability outside the Act for failure to maintain a safe system of work. They also involved defects of a very different kind. 105 However Allianz Australia Insurance Ltd v GSF Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 contains a helpful analysis of this definition of injury in an earlier statute. 106 The mechanical unloading mechanism on a truck was defective, and the employer instructed its employee to unload the truck manually. In doing so the employee injured his back. It was common ground that there was "a defect in the vehicle" but the Court held unanimously that the operative cause of the injury was not the defect, but the negligent direction of the employer. 107 McHugh J said (para [54]) that there had to "be a finding that, of the entire set of circumstances that contributed to the injury, it was 'a defect in the vehicle' that caused the injury". He added (para [61]) that "… there must be a close physical connection between the defect and the injury". The ratio of his decision was in paras [58]-[59]: … two matters contributed to bring about Mr Oliver's injury: 1. the unremedied defect in the unloading mechanism, which rendered the mechanism inoperative; and 2. the employer's negligent direction to Mr Oliver to unload the containers manually. Of these two elements, it was the second that proved decisive. The unremedied defect, like Mr Oliver's employment and the containers on the vehicle, was merely one of a myriad of background facts that had to exist for the injury to occur. … the passive condition of the defective mechanism was not a cause of Mr Oliver's injury. It was the employer's direction that was significant. 108 Gummow, Hayne, and Heydon JJ said (paras [102]-[103]) The use in the definition of the emphatic and intensive phrase "if, and only if" directs attention to notions of predominance and immediacy rather than to more removed circumstances. The definition of "injury" looks … to notions of proximate cause found in insurance law. That construction is consistent with the subject, scope and purpose of the 1995 Act. It was the system of work adopted by GSF … which had a predominant quality for, and an immediacy to, Mr Oliver's injury. 109 The decisive causative element in the present case was "the passive condition" of the fuel tank without its fuel cap which permitted the spillage to occur. The fuel level in the tank, the driving of the vehicle, the configuration of the reverse bend, and the arrival of the van travelling at 100 kph, in the language of McHugh J, were "merely … background facts which had to exist for the injury to occur", and it was the defect in the vehicle "that caused the injury". 110 In the language of the plurality the open fuel tank was the predominant and immediate cause of the spillage and this was the immediate cause of the injury. 111 Accordingly the appeals of the plaintiff and the first defendant against the judgment entered for the Nominal Defendant should be allowed, and judgment entered against it for the damages assessed by the Judge. 112 At the trial the appellant sought a Sanderson or Bullock order against the first defendant in respect of the costs of the Nominal Defendant, and she appealed from the Judge's refusal to make such an order. The position is now reversed. The parties did not address the consequences of the orders I will propose for the costs of the trial and in this Court. In these circumstances the usual orders should be made with liberty for any party to apply by notice of motion filed within 14 days for a variation. The parties' advisers are warned that the Uniform Civil Procedure Rules 2005 do not allow the Court to extend this time. 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. 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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