District Court New South Wales Medium Neutral Citation: Jay Alexander Bramstedt v The Nominal Defendant [2016] NSWDC 4 Hearing dates: 14, 15 & 18 December 2015 Date of orders: 28 January 2016 Decision date: 28 January 2016 Jurisdiction: Civil Before: Sidis ADCJ Decision: (1) Verdict for the defendant. (2) The plaintiff is to pay the defendant's costs of the proceedings on an indemnity basis. (3) The exhibits will be retained for 28 days. (4) My reasons are published. Catchwords: TORTS – negligence - motor vehicle accident - causation - material on road surface - source of material - whether a hazard - available inferences - alternative hypotheses - duty of care - blameless accidents - contributory negligence. Legislation Cited: Australian Road Rules 2014 Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Cases Cited: Connaughton v Pacific Rail Engineering Pty Ltd [2015] NSWDC 89 Dominello v Nominal Defendant & Anor [2009] NSWCA 95 Hossain v Mirdha [2015] NSWDC 108 Incorporated Nominal Defendant v Knowles [1987] VR 138 Luxton v Vines (1952) 85 CLR 352 Melenewycz v Whitfield [2015] NSWSC 1482 Nominal Defendant v Genn [2004] NSWCA 306 Category: Principal judgment Parties: Jay Alexander Bramstedt – Plaintiff The Nominal Defendant – Defendant Representation: Counsel: Dr Morrison SC with Mr Longhurst - Plaintiff Mr Rewell SC - Defendant Solicitors: Kells Lawyers - Plaintiff McInnes Wilson Lawyers NSW - Defendant File Number(s): 2012/254562 Publication restriction: None Judgment 1. At about 4.30 pm on 2 September 2011 the car driven by the plaintiff in the northbound lane of Yellow Rock Road, Tullimbar, a small community near Albion Park, NSW, crossed into the southbound lane and collided with a Toyota Landcruiser. The plaintiff was seriously injured as a result of the collision. The Court was asked to deal with the issue of liability in advance of the assessment of any compensation to which the plaintiff might be entitled. 2. The plaintiff acknowledged that the driver of the Landcruiser was not at fault. He claimed against the Nominal Defendant as the insurer of an unidentified motor vehicle, the driver of which was alleged to have negligently allowed gravel or like material to be deposited across both lanes of Yellow Rock Road. In the alternative, he claimed that his injuries occurred as a result of a breach of Regulation 292(c) of the Australian Road Rules or, in the further alternative, that they were suffered in a "blameless accident" as defined in s 7A of the Motor Accidents Compensation Act 1999. The plaintiff's account of the accident 1. The plaintiff was driving a 1992 Ford Laser sedan that he owned for five to six weeks prior to September 2011. He was unaware that this early model vehicle was not equipped with the ABS braking system. 2. He was an experienced driver. He held a driver's license for 12 years with an unblemished driving record. He was familiar with Yellow Rock Road, having driven it twice daily over a period of four years while working at premises located on the road. He was aware that the speed limit applying to the road at the time of the accident was 100 km/h. 3. The plaintiff provided a number of accounts of his recollection of the circumstances leading to the accident. Sergeant Park recorded the first account on 8 October 2011. An extract from the statement appeared on page 11 of the report of Mr Keramidas, traffic engineer, of 12 March 2014 (Exhibit 4A) as follows: A I was driving along Yellow Rock Rd on my own, heading home, came around the last bend before the main road, and as I came around the bend I seemed to hit loose gravel of some kind on the road. In reaction I hit the brake which didn't help, and that's pretty much the last thing I remember. 1. He estimated his speed at the time at "Around 60 km/h at the most". 2. On 13 March 2012 an investigator commissioned by the defendant took a statement (Exhibit 1) from the plaintiff. He told the investigator: [45] I was travelling around 50kms per hour. [46] I was driving along Yellow Rock Road, everything was normal. As I came around the final bend in Yellow Rock Road, towards the tail end of the bend there was loose gravel spilt on the road. [47] I cannot remember how far the gravel was spread across the road. It seemed to be extending along my lane, not across the road. I cannot recall how much gravel there was on the road. I did not notice the gravel until I was more or less on it. [48] My vehicle was completely within my lane as I came to the tail end of the bend. [49] All I recall is that the car started to slide when it hit the gravel. I remember hitting my brakes and the car continued to slide. Instead of veering left around the bend the car slid straight. 1. These statements formed the basis for the claim pleaded in the statement of claim initially filed on behalf of the plaintiff. 2. The plaintiff's claim at the time of the hearing was that he applied his brakes on approach to the material on Yellow Rock Road with the consequence that his front wheels locked and he lost control of his car. An amended statement of claim was filed to reflect this change of position on the part of the plaintiff. 3. In his evidence to the Court, the plaintiff said he was unable to assist on the issue of speed, except that he maintained the same speed throughout his journey. His recollection was: Q. What happened? A. I, I noticed debris on the road and I applied my brakes and began sliding and that's where my memory ends. (Transcript 7.13) Q. Do you know how far away you were from the debris when you first saw it? A. I was very close. Q. Do you know whereabouts your braking started in relation to the debris? A. Relatively close if not on it. (Transcript 7.11-19) 1. The speed at the start of the skid marks was estimated at between 84 and 95 km/h by expert traffic engineers and 85 km/h by police officers who attended at the scene. When faced with these estimates, the plaintiff acknowledged that he understated his speed in his statements. He denied that he did so deliberately. 2. It was clear that the plaintiff's change of position was prompted by evidence provided by a photograph taken by Sergeant Park after the accident (Exhibit A1 and Exhibit 2). The photograph depicted the presence of skid marks for a distance of about 4 metres south of the material on the road. 3. The plaintiff maintained under cross-examination that he first sighted this material at a distance of less than 10 metres. He rejected the proposition, accepted to be correct by both experts, that by reason of the time required for perception/reaction to a hazard, it was more probable that he was more than 30 metres from the material when he applied his brakes. 4. Of significance to the plaintiff's evidence was the following: Q. How do you account for the fact that you were somewhere between 34 and 43 kilometres an hour underestimating your speed when you spoke to the investigator? A. The only answer I have for that is the fact that my memory isn't as good of the accident as what you want it to be. Q. Then how can you be confident that you saw and reacted to the presence of the material on the roadway before you were on it? A. I don't know. (Transcript 20.20-27) 1. The plaintiff was incorrect in his recollection of significant features of the accident. He understated his speed on two occasions. He incorrectly claimed that the material was itself the cause of the skid and the accident that followed. Even after he became aware of the presence of skid marks preceding the material, the plaintiff incorrectly stated the point at which he applied emergency braking. 2. I concluded therefore that the plaintiff had reconstructed the circumstances of the accident and that I could place no reliance on his evidence. 3. The driver of the Landcruiser was the only other witness to the accident itself. She travelled north from her home in Yellow Rock Road between 3.30 and 4.00 pm on 2 September 2011 on her way to Albion Park where she shopped before commencing the return journey. She saw no material on the road that was hazardous or unusual. 4. Since September 2011 the land on the eastern side of Yellow Rock Road has been developed as a housing estate. In September 2011 the land was undeveloped and there was general agreement, subject to obstruction by foliage, that the line of sight of Yellow Rock Road from the Illawarra Highway was clear. The driver of the Landcruiser said she was able to see the plaintiff's car travelling on Yellow Rock Road as she approached her left hand turn from the Highway. She thought that he was travelling at speed. 5. Shortly after she made this left hand turn she saw that the plaintiff had lost control of the car. He was on the wrong side of the road. She then realised that he would not negotiate the bend and she was powerless to avoid the collision that followed. 6. This witness provided a statement to police at the scene of the accident, the relevant part of which read: I was travelling along Yellow Rock Road, as I just turned off the Illawarra Highway. I was travelling at 35 kilometres an hour. As I approached the right hand bend I could see a car coming around the bend on the wrong side of the road. About half of the car was on the wrong side of the road when I saw it then the next thing I remember was an impact to the front of my car. Just before the car hit me I saw it and it looked like it was coming sideways at me. After the impact I immediately got out of the car. I wasn't trapped at all. (Exhibit 4A, p14) 1. She was challenged because that statement contained no reference to her having seen the plaintiff's approaching vehicle before it was half way across the road. Her explanation for this was that she dealt with events immediately prior to the collision and her statement was not intended to be sufficiently detailed to deal with evidence that she might be called upon to give in a court room four years after the accident. 2. As to the absence of reference to the speed at which the plaintiff's car was travelling, she insisted that she was 100% certain that she repeatedly informed the police officer that the plaintiff was "flying" (Transcript 66.37). Agreed Facts 1. Many of the features surrounding the circumstances of the accident were not disputed. Much of this agreement was arrived at by the expert traffic engineers in the course of a pre-hearing conference and while giving evidence concurrently. They included the following: 1. The accident occurred at about 4.30 pm on 2 September 2011 in daylight. The weather was fine and the road surface was dry. 2. The 1992 Ford Laser was not fitted with an ABS braking system. 3. The eastern side of Yellow Rock Road has been developed by the construction of a housing estate since the date of the accident. 4. The following description of the geometry of the Yellow Rock Road in paragraph 6.1 of the report of traffic engineer Mr Jamieson of 13 June 2014 (Exhibit C1) was accurate: As can be seen from the photographic material, the crash occurred on a relatively tight slight downhill left bend for the Laser driver. It was determined that this curve involved a left deflection of 60 degrees with an 'arc length' of about 105 metres. This resulted in an equivalent circular radius of about 90 metres. It was noted that Mr Keramidas obtained the same value. The road featured superelevation (or banking) of about 5 – 7% and a slight downhill (3%) slope towards the impact for the northbound Laser. The pavement as examined on the on-scene Police photographs shown in Appendix D revealed that it was sealed with 'chip seal' bitumen-bonded aggregate to be 'fair' condition. 1. Mr Keramidas provided further amplification of the features of Yellow Rock Road on page 16 of Exhibit 4A: … Yellow Rock Road on approach to the incident location comprises a long straight section leading into an 'S' bend. The 'S' bend is configured such that a northbound vehicle [being the direction of travel of the Plaintiff] first negotiates a right-hand horizontal bend which then leads into a left-hand horizontal bend. The impact location was on the departure side of the left-hand horizontal bend and approximately 104 metres south of the Illawarra Highway. To the north of the left-hand horizontal bend the roadway is essentially straight up to where it intersects with the highway as a 'T' intersection. 1. The critical or slide off speed for the curve was 93 km/h. 2. There were no advisory speed signs on approach to either of the curves comprising the "S" bend. The speed limit of 100 km/h was inappropriately high. Since the accident the speed limit has been reduced to 80 km/h and, following development of the housing estate, to 50 km/h. 3. The plaintiff's speed prior to the commencement of skidding marks was between 84 and 93 km/h. 4. The plaintiff's vehicle at the start of the skid was close to the critical speed for the curve but did not exceed it. 5. The car was braked to the point of locking the front wheels and skidding on the road surface. 6. High resolution digital images demonstrated the presence of tyre marks preceding the material shown to be on the surface of the road by police photography. 7. Police photography also depicted the presence of material on the surface of the road, traversing both the north and southbound traffic lanes. 8. A darkened line to the side of the northbound lane did not depict a skid mark. It was a line of moisture created at the point where the bitumen seal on the road had been widened. 9. From the point when the plaintiff applied emergency braking the accident was inevitable. 10. Based on an average perception/reaction time of 1.5 seconds and the midpoint of the estimated range of the plaintiff's speed between 84 and 93 km/h, the plaintiff perceived that it was necessary to apply emergency braking 37 metres south of the commencement of the skid marks and 41 metres south of the point where material was present on the road surface. This point was marked on Exhibit 4C by Mr Keramidas without objection by Mr Jamieson. Issues Arising The material on the surface of the road 1. The plaintiff described this material as: … an amount of gravel, various sized gravel, dirt, possibly sandy substance spread across the road. (Transcript 7.30) 1. His brother arrived at the site shortly after the accident and before the arrival of emergency vehicles. He described the material as: … just loose rubble really, probably dirt, little rocks. (Transcript 27.31) 1. The plaintiff's brother agreed that the quantity of material was not large. He denied that it was insufficient to represent a hazard. 2. The driver of the Landcruiser said that on her northbound journey between 3.30 and 4 pm she saw nothing unusual or hazardous on the road. 3. Two police officers attended the accident site and, having assisted the plaintiff, investigated the circumstances of the accident. The senior officer, Sergeant Park, took the photographs that were in evidence as Exhibit A and Exhibit 1. His notebook entries made no reference to the presence of the material that was clearly visible in the photographs. Nor did he refer to it in his subsequent COPS report. 4. Sergeant Park agreed that it might have been appropriate to include reference to this material in his report. He agreed that he told the defendant's investigator: No, gravel was not an issue. I did not see that anywhere near the point of impact or where the skid marks started. If there had have been gravel there we would have taken that into consideration for legal proceedings. He did mention gravel but that was one month later when the statement was taken. (Exhibit B) 1. He did not recall providing the following description to the defendant's solicitors: At the start of the skid marks there was 'very slight debris' on the roadway consisting of loose stones and dirt or a mixture of dirt and gravel as seen on most roads. 1. He agreed that, by reference to the photographs, this accurately described the material on the road although when giving evidence at the hearing, he was not prepared to concede that the material contained gravel. He thought it was sand or dirt. 2. Sergeant Park said he would have noted the presence of the material if he considered that it contributed to the cause of the accident. 3. Senior Constable Haywood undertook an examination of the scene and provided information that Sergeant Park recorded in his notebook. He did not remember seeing material on the road at the time of inspection. Having refreshed his memory by reference to the photograph, he agreed that it showed dirt and small sized gravel in the vicinity of the skid marks. He thought the material had no greater significance than a small puddle of water. He said: I didn't consider it significant to record it. The skid marks go through it. In my opinion if there was anything significant on the roadway that would have caused loss of traction of the vehicle, such as a large spillage of gravel, not just a small amount like that, I definitely would have informed Sergeant Park as it would negate negligence on behalf of the driver. (Transcript 52.9) 1. The experts agreed that a road surface contaminated by substances such as soil, gravel and sand would have a deleterious effect on friction supply, depending upon the extent of contamination. They also agreed that, at a speed that was close to the critical limits, any additional traction demand would result in the loss of traction and probable loss of directional stability. 2. Mr Keramidas said the material on the road appeared to be very light and inconsequential. 3. Dr Morrison, senior counsel for the plaintiff, suggested that the material included "stones". I was not satisfied that the photograph Exhibit A1 was sufficiently clear to determine whether the larger fragments were stones or clumps of dirt or sand, as suggested by Sergeant Park. 4. Whatever might have been its composition, the experts agreed that this material did not cause the loss of control experienced by the plaintiff immediately prior to the accident. They agreed that the plaintiff lost control because he applied his brakes with sufficient force to lock the front wheels. The source of the material 1. The source of the material and the means by which it was deposited on the road were matters of speculation. 2. It was apparent from photographs that some work preliminary to the development of the housing estate on the eastern side of the road had been carried out. Kerbing, guttering and tree planting was in place on the eastern edge of the road and photographs showed the presence of buildings having the appearance of site sheds to the northeast of the point of the collision. 3. The driver of the Landcruiser, who lived on Yellow Rock Road, said there was no construction work in progress at the time of the accident and no construction vehicles using the road for that purpose. The plaintiff's brother's recollection differed. He said construction vehicles were constantly on the road. 4. Sergeant Park agreed that the material did not appear to have come from the road shoulder. He was not prepared to agree that it was building material. Similarly, Senior Constable Haywood declined to offer an opinion on the source of the material. 5. Mr Jamieson was perplexed by its presence on the road. Mr Keramidas said it was unusual. Their concern related to the fact that the material was spread across most of both traffic lanes and not, as would be the case if it fell from a travelling vehicle, longitudinally in the direction of travel of any vehicle from which it fell. This suggested to Mr Jamieson that the material fell from a vehicle that came from a driveway and crossed the road from east to west, although there appeared to be no driveways in the immediate vicinity. 6. Mr Keramidas thought it was more likely that the material was jolted from the tailgate or wheel arches of a vehicle rather than from the load on the vehicle. 7. Ultimately neither expert was prepared to commit to a firm opinion. In response to the question of whether the material came from a passing vehicle Mr Jamieson said: That's, excuse the double negative, not unreasonable, but ultimately I don't know where that material came from. (Transcript 108.45) 1. In response to the question of whether it was more likely that the material spilled from a load than from the undercarriage of a vehicle, Mr Keramidas said: Look, I don't disagree with you. There's just features of it that make it appear like a drop. I can't explain why there's material on the other side of the road. But even if it's a spillage, it should be longitudinal along the road, not spread into the south-bound lane as well. I just, I really don't know. (Transcript 110.7) The consequence of the presence of the material 1. Although they agreed that the presence of the material did not, of itself, cause the loss of control of the Laser, the experts disagreed on the question of whether friction supplied by the road surface at the point where the vehicle skidded through the material was reduced to a point where it affected the severity of the accident. 2. By reference to Exhibit A1, Mr Jamieson explained his opinion that there appeared to be a difference in the skid mark as it progressed through the material: I'm just looking at exhibit A1 to the left, lower left where some marks, skid mark, appears to enter the loose material and it appears that the loose material is swept along by those marks which is indicative of the locked tyre is skidding is skidding along or rolling along the loose material, similarly on the centre right where the other mark goes through. It's not as obvious on the centre right one but certainly on the lower left one I can see some sweeping along of that material, subtle, but enough to make that opinion. (Transcript 81.46) 1. Mr Keramidas, having examined the digital photograph, Exhibit A1, closely on his computer screen, said he saw nothing to indicate what he would expect to see, namely, some change in direction of travel of one or other of the tyres. Mr Jamieson agreed that the path of the skid was unaffected by its passing through the material. He said that the significance of the presence of the material was that it affected the extent to which the speed of the vehicle was reduced by braking. He said: It's quite possible that there might have been a minor collision had there been a good dry type of surface all the way for that skid. (Transcript 104.27) 1. Mr Keramidas disagreed. He said that, even if there had been no friction as the vehicle skidded through the material, the difference in speed would have been no greater than 1 – 2 km/h. 2. There followed a debate between the experts on whether even a detailed examination of Exhibit A1 would establish the extent of any loss of friction. Mr Keramidas relied on the absence of scratch marks in the digital image that indicated that friction was not affected by the presence of stones between the tyre tread and the road surface. Mr Jamieson agreed that no scratch marks were evident in the computerised viewing of the photograph. However, he said a conclusion on this topic required very close forensic examination of the road surface. Alternative hypotheses 1. The claim that reaction to the material on the road was the probable reason for the application of emergency braking presented a difficulty because there were at least two other hypotheses available. 2. One was that the plaintiff saw the approaching Landcruiser and realised that, at the speed at which he was travelling, he was unlikely to be able to negotiate the northern section of the S-bend on the correct side of the road. The plaintiff's evidence that he did not see the Landcruiser before the accident could not be accepted for the reasons already stated. 3. This hypothesis raised the question of whether there was an unobstructed line of sight available to the plaintiff towards the direction from which the Landcruiser travelled. 4. The driver of that vehicle said she could see the plaintiff's car before she turned into Yellow Rock Road. The plaintiff urged me to reject this evidence because it was not recorded in her immediate post-accident statement to police officers. Her explanation for its absence was rational and I saw no reason to disregard this element of the evidence. 5. The experts agreed that, from the point marked on Exhibit 4C as an intermediate point at which the plaintiff applied emergency braking, there was line of sight through to the intersection with the Illawarra Highway, subject to the obstruction of that view by roadside foliage. Mr Jamieson drew attention to photographs 5 and 7 in Appendix A of Exhibit 4A. Those photographs indicated a line of trees on the western side of the road leading to the roadside. It was apparent, however, from the angle of the S-bend shown in those photographs that the camera lens used had the effect of compressing and distorting the appearance of the features that it depicted. 6. The aerial photographs and diagrams provided by each expert indicated a curve on the bend of more moderate proportions and tree foliage set well back from the western side of the road that presented no obstruction to the sight line from the point marked "X" on Exhibit 4C in a north easterly direction. 7. Acknowledging that all of these photographs post date the accident, there appeared to me to be at least a viable inference that it was possible for the plaintiff to see the Landcruiser from the point where he applied emergency braking. 8. A second hypothesis was that the plaintiff, familiar with the conditions on Yellow Rock Road, appreciated that his speed was too fast to negotiate the corner. This also presented a viable inference having regard to the agreements between the experts on likely speeds at the commencement of the skid marks and the critical speed for the northern curve. Even more so, if Mr Keramidas' estimate of the plaintiff's speed at the time the brakes were applied at 84 to 94 km/h were to be accepted. 9. The plaintiff was concerned to point out that he negotiated safely the southern section of the S-bend, which, in Mr Jamieson's opinion, presented a curve to the right of similar radius to that of the northern section. In his opinion, unless the plaintiff accelerated significantly after negotiating the initial curve, this provided evidence that the plaintiff did not travel at a speed that exceeded the critical speed for the northern curve. 10. As Mr Jamieson pointed out in his third report, Exhibit C3, this fact would have been self-evident if there was evidence that all other factors remained equal. There was no evidence, however, of the path taken by the plaintiff on the southern curve or, importantly, of whether he remained within the southbound traffic lane at that point. Further, as with his other evidence, I rejected as unreliable the plaintiff's claim that he maintained the same speed through this part of the S-bend. Conclusions and Findings 1. There were difficulties in arriving at firm findings in this case. In the absence of direct evidence, I was required to draw inferences that supported the plaintiff's claim. 2. The parties referred me to a number of authorities that involved single vehicle accidents caused in avoiding items on the road surface where direct proof of evidence was not available. In Nominal Defendant v Genn [2004] NSWCA 306 the plaintiff lost control of his vehicle when he swerved to avoid a substantial piece of freshly cut metal. In Incorporated Nominal Defendant v Knowles [1987] VR 138 the obstruction was a milled piece of timber. In both cases, the plaintiffs succeeded in their claims. 3. In Knowles Justice Marks said: It is to be borne in mind that a tribunal of fact, as was the jury, is entitled to draw what appears to it to be the more probable of inferences from the facts which are proved. It is only where the inferences are equally open that an inference will not be permitted. (at p140) 1. Dominello v Nominal Defendant & Anor [2009] NSWCA 95 dealt with a spill of diesel oil on a highway where the speed limit was 100 km/h. Handley AJA provided the reasons of the majority in finding that the first defendant, but for the presence of diesel, would have safely negotiated a curve when driving at the speed limit. He said at [52] that driving at a speed that might be higher than that selected by a more prudent driver did not, without more, constitute a failure to take care. 2. He cited the following extract from Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 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 degree 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. 1. Ordinarily, I would be able to arrive at firm conclusions as to factual findings notwithstanding factual disputes or disagreement between experts. In this case, however, too much was left to speculation to be able to progress beyond the realm of conjecture to the point where inferences could be drawn. 2. The plaintiff promoted the suggestion that police officers overlooked or failed to recognise the significance of the presence of material on the road surface. I was not satisfied that this was so. Descriptions of the material varied but none reached the point where I could comfortably conclude that this material represented to a driver, acting reasonably, from a distance of more than 30 metres that it was such a significant hazard that emergency braking was warranted. 3. Where the material came from and how it came to be on the road with such unusual positioning were entirely unexplained. 4. There were two reasons why the evidence was insufficient to support Mr Jamieson's contention that the presence of the material caused the plaintiff's car to lose contact with the road surface or that in so doing it reduced the extent to which its speed might have been slowed prior to the collision. 5. The first was that Mr Jamieson accepted that proof of this contention required detailed forensic examination of the road surface. This was not done. The most that could be said was that close computer examination of the digital photograph taken after the accident disclosed no indication of the markings that might be expected if contact with the road surface had been lost. 6. Secondly, the contention concerning the effect of any loss of traction on the ultimate speed of the plaintiff's vehicle at the time of impact was unsupported by methodology or mathematical calculation. 7. There were two alternative hypotheses that were equally if not more probable than that claimed by the plaintiff. I remained at the conclusion of the evidence unpersuaded that the most probable hypothesis was that the somewhat sparse quantity of material on the road surface prompted a driver of the experience of the plaintiff to apply his brakes with sufficient force to lock his front wheels and lose control of his motor vehicle. Breach of duty 1. The plaintiff was obliged by s 5D of the Civil Liability Act 2002 to establish the element of causation, an element that applies to proving the factual circumstances in which the accident occurred as well as satisfying the Court that those circumstances involved a breach of the duty of care, defined as follows in s 5B of the Act: (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 1. The difficulty in this case was that of identifying the relevant risk. The plaintiff lost control of his car through the emergency application of brakes that induced the skidding process. 2. To meet the requirements of s 5B(1) it would be necessary to provide sufficient evidence to establish that: 1. The presence of the material on Yellow Rock Road at the time of this accident created a significant risk to road users; 2. The material on the road in fact fell from a motor vehicle; 3. The material fell from an uncontained load on the relevant motor vehicle; 4. The driver of that vehicle, acting reasonably, ought to have foreseen that an approaching driver would apprehend the material to be such a significant risk that it was necessary to apply emergency braking; 5. The driver of that vehicle, acting reasonably, would have taken precautions to guard against the occurrence of that risk. 1. I accepted that the presence of contaminating material deposited on a road surface by a passing vehicle, such as oil, water and loose material of the type that would have the consequence of causing a vehicle to lose traction, might be regarded as a significant risk and that a reasonable driver would take precautions to prevent the occurrence of such a risk. I did not accept that the mere presence of the material on this road of itself created a risk that required the attention of a reasonable person driving the unidentified motor vehicle. It is often stated, in the context of tort law, that life does not always present a level playing field. It is not unusual to encounter material on the surface of roads, such as leaves or other debris from roadside vegetation, puddles of water and even gravel or loose material from roadside verges. All demand care on the part of motorists. Their presence on the road does not necessarily create a significant risk against which precautions ought reasonably to be taken. 2. In this case the quantity of material was slight and its content and source were the subject of speculation. Two police officers who investigated the circumstances of the accident independently concluded that the presence of the material was not sufficiently significant to be taken into account. 3. I was not satisfied that the evidence presented on behalf of the plaintiff in this case was sufficient to establish any breach of duty on the part of the driver of an unidentified motor vehicle. Regulation 292(c), Australian Road Rules 2014 1. This Regulation provides: 292 Insecure or overhanging load A driver must not drive or tow a vehicle if the vehicle is carrying a load that: (a) is not properly secured to the vehicle, or (b) is placed on the vehicle in a way that causes the vehicle to be unstable, or (c) projects from the vehicle in a way that is likely to injure a person, obstruct the path of other drivers or pedestrians, or damage a vehicle or anything else (for example, the road surface). 1. Neither party presented submissions directed at the pleaded breach of this Regulation. 2. As already noted, there was insufficient evidence to establish the source of the material so that it could not be determined that, if the material fell from a motor vehicle, it did so because the driver failed to ensure that the load was secure and covered. "Blameless" accidents 1. The Motor Accidents Compensation Act makes special provision for the recovery of compensation in limited circumstances where injury has resulted from a motor accident where no party is at fault. The plaintiff claimed that this was such an accident. 2. The term "blameless motor accident" is defined in s 7A of the Act as follows: "blameless motor accident" means a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person. 1. In respect of drivers involved in such accidents, s 7E provides: 7E No coverage for driver who caused accident (1) There is no entitlement to recover damages under this Division in respect of the death of or injury to the driver of a motor vehicle if the motor accident concerned was caused by an act or omission of that driver. (2) The death of or injury to the driver is taken to have been caused by an act or omission of the driver for the purposes of subsection (1) even if: (a) the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or (b) the act or omission was involuntary, or (c) the act or omission was not the sole or primary cause of the death or injury, or (d) the act or omission would have caused the death or injury but for the occurrence of a supervening act or omission of another person or some other supervening event. 1. The plaintiff conceded that any fault on his part would deny him the advantage of these provisions. 2. He maintained that, even if it was considered that he made the wrong decision in applying emergency braking in response to the presence of material on the road, it did not put him at fault. He contended that this was a matter to be taken into account in assessing contributory negligence and relied on prior authority that he maintained led to the conclusion that there was no fault on his part. 3. These submissions do not accord with judicial approaches to date to the interpretation of the blameless accident provisions of the Act, particularly those that relate to claims by drivers who suffer injury in single vehicle accidents. 4. The decisions to date that were of particular significance were Connaughton v Pacific Rail Engineering Pty Ltd [2015] NSWDC 89 and Hossain v Mirdha [2015] NSWDC 108. These decisions were closely considered by Justice Hamill in Melenewycz v Whitfield [2015] NSWSC 1482, a third claim involving a single vehicle accident. 5. In Melenewycz Hamill J made the following points: 1. As did Norton DCJ in Connaughton and Elkhaim DCJ in Hossain, Justice Hamill said that parliamentary debate on proposals to deal with blameless accidents did not assist in interpreting the legislation subsequently enacted; 2. As did Norton DCJ in Connaughton and Elkhaim DCJ in Hossain, he rejected the contention that the blameless accident provisions were not intended to respond to the claims of drivers involved in single vehicle accidents; 3. It was necessary to decide only that the plaintiff's act or omission caused the accident not that the plaintiff was at fault or negligent; 4. It was critical to the decision in Hossain that the collision in that case would not have occurred if the plaintiff had not steered away to avoid the dog that ran in front of his taxi; 5. S 7E imposed limitations on the circumstances in which a driver might recover but those limitations did not lead to the conclusion that "the very act of driving is a (but not necessarily the only) cause of the injury" [39]. 6. As did Norton DCJ in Connaughton, he concluded that the act or omission must be something more than an act of driving that "was no more than a background fact which explains no more than why he was in the position where the accident occurred" [52]. 1. In Houssain at [29] Judge Elkhaim accepted that, while it was necessary for the act or omission to be causative of the accident, it was not necessary that the act or omission of the driver be the sole or primary cause of the accident. 2. There was no doubt that, regardless of the issue of fault or neglect, the plaintiff's act in applying emergency braking caused the loss of control that resulted in the collision with the Landcruiser. 3. In such circumstances, this was not an incident to which the blameless accident provisions of the Act applied. Contributory Negligence 1. Had I considered that there was neglect by the driver of an unidentified vehicle in allowing material to be deposited on Yellow Rock Road that contributed to the occurrence of the accident, I would have assessed the plaintiff's error in applying emergency braking as the major contributing factor to the accident. 2. In such circumstances, I would have assessed his contributory negligence at 65%. ORDERS 1. Verdict for the defendant. 2. The plaintiff is to pay the defendant's costs of the proceedings on an indemnity basis. 3. The exhibits will be retained for 28 days. 4. My reasons are published. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 February 2016