Faoud Taouk v Richard Tahana

[2015] NSWDC 55

District Court

New South Wales

Medium Neutral Citation:	Faoud Taouk v Richard Tahana [2015] NSWDC 55
Hearing dates:	13 April 2015 – 17 April 2015
Decision date:	24 April 2015
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict for each Cross-Claimant. For orders see [102]
Catchwords:	Motor vehicle accident. Spillage of contaminant on roadway. Whether driver of unidentified vehicle negligent. Competing Cross-Claims. Apportionment.
Legislation Cited:	Civil Liability Act 2002 (NSW) Motor Accidents Compensation Act 1999 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Curtis v Harden Shire Council [2014] NSWCA 314 Dominello v Nominal Defendant [2009] NSWCA 95 Marien v Gardiner [2013] NSWCA 396 Nominal Defendant v Bacon [2014] NSWCA 275 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Shoalhaven City Council v Pender [2013] NSWCA 210 State of NSW v Fuller-Lyons [2014] NSWCA 424 The Nominal Defendant v Ross (No. 2) [2014] NSWCA 370 Warth v Lafski [2014] NSWCA 94
Category:	Principal judgment
Parties:	Faoud Taouk (Plaintiff) Richard Tahana (Defendant) Richard Tahana (1st Cross Claimant – 1st Cross Claim) The Nominal Defendant (Cross Defendant – 1st Cross-Claim) The Nominal Defendant (Cross Claimant – 2nd Cross Claim) Richard Tahana (1st Cross Defendant – 2nd Cross Claim) HDG Logistics Limited (2nd Cross Defendant – 2nd Cross Claim)
Representation:	Counsel: K P Rewell (1st Cross-Claimant – 1st Cross Claim) (1st & 2nd Cross Defendants – 2nd Cross Claim) R Stitt QC (Cross Defendant – 1st Cross Claim) (Cross Claimant – 2nd Cross Claim) Solicitors: T L Lawyers Sparke Helmore Lawyers
File Number(s):	11/393248
Publication restriction:	Nil

Judgment ON CROSS-CLAIMS

Introduction

1. The plaintiff in the principal matter sued the defendant for damages for personal injuries suffered by him on 7 August 2008, when an articulated semi‑trailer driven by the defendant collided with his vehicle at the intersection of Cumberland Road and The Crescent at Auburn. Both plaintiff and defendant were employed as drivers by HDG Logistics Limited (“HDG”), the second cross defendant to the second cross claim.

2. The premises of HDG were located nearby. The plaintiff was on his way home from work at approximately 3pm in the afternoon and the defendant was returning to the depot. As the defendant proceeded in a westerly direction along The Crescent, in wet weather conditions where the roadway was wet, he saw a film of what was described as a “rainbow-type appearance” on the wet road surface ahead of him, approximately 30 metres before he reached the corner where The Crescent intersected with and became Cumberland Road. The defendant was travelling at 30-40 kph as he approached the corner, and slowed to 20-30 kph. When he reached the corner and commenced to steer around the corner, the prime mover he was steering and trailer jack‑knifed across onto the incorrect side of Cumberland Road, colliding with the plaintiff’s vehicle which was travelling in the opposite direction, about to turn the corner from Cumberland Road onto The Crescent. The offside edge of the trailer of the defendant’s vehicle crushed the cabin of the plaintiff’s oncoming truck, causing serious injuries to the plaintiff.

3. The defendant/first cross-claimant (“Mr Tahana”) claims that the film on the roadway was caused by a spillage of diesel from an unidentified vehicle which had passed along the roadway a short time before this incident, without its fuel cap attached at all, or with its fuel cap poorly attached so that a spillage of diesel fuel occurred along the roadway. It is in those circumstances that the defendant/cross-claimant claims that the Nominal Defendant is liable for the plaintiff’s damages.

4. By a Second Cross-Claim, the Nominal Defendant sues Mr Tahana and his employer, HDG, claiming that the defendant was negligent and seeking indemnity and/or contribution from the first and/or second cross-defendants.

5. The determination of the cross-claims herein involves a determination of the cause of the collision between the two vehicles, namely, whether the collision occurred as a result of contamination of the roadway due to the negligence of the driver of an unidentified vehicle, or whether the collision was caused by the negligence of the defendant Mr Tahana, or both, in which case a further question of apportionment has to be determined.

The Evidence

6. The evidence comprised factual evidence given by the plaintiff, the defendant, and from others who attended the scene including police, fire brigade and other witnesses. Expert evidence was also called on behalf of both parties which is referred to below. In addition, a report prepared by Senior Constable Bain of the New South Wales Police Crash Investigation Unit was admitted over objection (see separate judgment dated 13 April 2015). Due to illness, Senior Constable Bain was unavailable for cross‑examination

7. Sergeant Grant Morrissey attended the scene of the accident at 3.30pm on 7 August 2008. He described the weather when he arrived as “quite overcast, it had been raining and it was cold.” The road surface was wet and he described the intersection of the The Crescent and Cumberland Road as being generally a 90 degree bend in the roadway. That is depicted in exhibit A, a map of the area. He also took two photographs of the vehicles which became exhibit D.

8. Sergeant Morrissey observed the surface of the roadway to be wet but also he noticed an oily liquid on the road. When asked where the oily liquid was he replied:

“A: The oily liquid was – seemed to be all the way down Cumberland Road right up to the apex with The Crescent and it also went at least 10 metres up The Crescent as well.”

9. He clarified that to mean 10 metres to the east of the intersection along The Crescent at a minimum, and about a maximum of 30 metres. He observed the Fire and Rescue Service throw down what he described as sawdust on the roadway. He also observed Fire and Rescue commence to hose the road surface down on The Crescent. That was stopped when he learnt that the Crash Investigation Unit was to attend, so as to preserve the integrity of the accident site.

10. In cross-examination Sergeant Morrisey agreed that the photographs in exhibit D did not depict the presence of any sawdust in The Crescent. He took a statement from Mr Tahana in a police vehicle as it was raining. That statement became exhibit 1 in the proceedings. In that statement Mr Tahana had told the police that he tried to take evasive action to correct the prime mover before the collision, and that he had braked twice.

11. Sergeant Morrissey denied any knowledge that there had been a large number of accidents occurring at the location but knew that it was a highly trafficable area by trucks.

12. Sergeant Morrissey denied being aware that there was extensive spillage from the fuel tanks of the two trucks involved in the collision. He did not remember fuel spilling out of the trucks from either rupture or split of the fuel tanks of the Kenworth driven by Mr Tahana and the Mercedes truck driven by the plaintiff. He had no recollection of whether any absorbent material known as “sphag” had been placed on the surface of the roadway along The Crescent. Sergeant Morrisey agreed that nowhere in his police notebook entry did he record anything said by Mr Tahana about there being a significant amount of fuel or oil on the road. In re‑examination he said that he did not ask any questions of Mr Tahana as to whether he saw fuel or oil on the road. The statement was taken at 3.55pm, about half an hour after he arrived at the scene.

13. Mr John Henry was a member of the NSW Fire and Rescue Service which attended the scene of the accident. He confirmed that it had been raining and the roadway was wet. He observed diesel fuel spilling from the plaintiff’s truck. That fuel was spilling onto the road and running across the road at approximately a 45 degree angle and running into a gutter and proceeding down a drain. He dammed the drain and placed an absorbent material known as “sphag sorb” on the roadway. He also noticed that there had been quite a large oil spill or oil slick on the roadway on Cumberland Road, extending a distance of approximately 20 metres behind the plaintiff’s truck. He gave this evidence:

“Q: What was the extent of what you called the spill? In other words, how much of the substance was there on the road?

A: It’s hard to estimate, but if you’re talking about the substance behind the truck, because when it’s wet, virtually, what you’re looking at is a sheen. So any time you get water and you get a bit of, like, a hydrocarbon, it will put a sheen on that surface and that’s what we were looking at so it’s hard to estimate how much was there, but there was something there.

Q: Was it something to the extent you might ordinarily see when a road gets wet? Or more than that?

A: It was more than that. It was quite noticeable once you looked at the road.”

14. Mr Henry then called for another appliance as he did not have sufficient absorbent to cover the extent of the spill. He had no recollection of using the absorbent on The Crescent towards Alice Street to the east.

15. In cross-examination, Mr Henry was asked whether the fuel tanks of both trucks were leaking and he said it appeared to be one that was ruptured, namely, the plaintiff’s vehicle. He did not know the quantity of diesel that was spilling onto the road, but it was enough to warrant him putting a dam around the drain. In relation to the other oil slick he gave this evidence:

“Q: Would that not indicate that there was some diesel of liquid in that area as shown in the foreground of photo 15?

A: As I mentioned before, there was a hydrocarbon slick on the road in that area. If you’re asking me did it come from the truck, my answer is I don’t think it did, no.”

16. He observed the spill on the south-bound lane of Cumberland Road. There was no re-examination.

17. Mr Kohder Musri was driving his own vehicle behind the truck driven by Mr Tahana along The Crescent. As he came to the intersection of The Crescent and Cumberland Road he saw that truck jack-knifed. He stopped his car and assisted the trapped driver of the other truck. When he got out of that truck he was asked whether he noticed anything about the surface of the roadway and said:

“Q: What did you notice and where?

A: I noticed that on the actual corner, as I was – when I went down, I saw a kind of reflection colour of, like, bluey-yellowy colours.

Q: Where were the bluey-yellowy colours?

A: On – on the corner as you’re coming down behind the truck. So as I was coming behind the truck, it’s really on the corner there.

Q: On which side of the road, or both, which was it?

A: It was on – I think it was on both. It was going down, I think – I didn’t – because the trucks were blocking the other side, I didn’t even - …

Q: After the accident, when you were standing on the footpath, did you notice anything about the road surface of the part of The Crescent that you’d driven on yourself?

A: Yes.

Q: What did you notice?

A: Rainbow colours and just shady colours of – discolouration, basically, like weird colours and all that. …”

18. In cross-examination, Mr Musri agreed that he had told police that he had driven along the road a lot of times and that he hated driving along it when it had been raining, because he knew it was very slippery and dangerous. He agreed that he told the police officer “in fact I know people who have actually lost control and had accidents on that very corner.” He also agreed that the discolouration that he observed on the road appeared to be oily or greasy. As to the slipperiness of the surface of the road, he was asked:

“Q: And the slipperiness creates a danger that you hated driving over?

A: Not necessarily the wetness, no, because it’s a tight corner and a lot of people speed and it’s a downhill and people speed a lot of the time and lose control. It’s nothing to do with the effect of the rain or anything, speeding, people come from Cumberland up the road and – although I’ve seen a few accidents there, it wasn’t a rainy day either.”

19. He agreed it was a lot more dangerous on a wet day. The discolouration on the road extended nearly to the roundabout. He identified it as being on the south-bound laneway on Cumberland Road. When asked how wide it was he said it was probably 2½ - 3 metres. There was no re-examination.

20. The plaintiff in the principal proceedings, Mr Faoud Taouk, gave evidence that he had worked for HDG for about eight and half years. On 7 August 2008 he was driving a table-top Mercedes Benz truck with a shipping container on its back. He was on his way home and intended to deliver the shipping container the following day. Mr Taouk had earlier that day undertaken two other deliveries, following which, he returned to the depot along The Crescent and Cumberland Road. He had no recollection of noticing anything unusual about the road earlier that day. Having turned onto the Cumberland Road, Mr Taouk gave evidence that he was travelling at a slow speed of less than 5 kph when he saw the Kenworth truck, also owned by HDG, coming in the opposite direction. He saw the trailer “just sliding and jack-knife into the front of his truck”. He was asked:

“Q: Was the prime mover or the trailer sliding or both? What was the position?

A: I couldn’t exactly – because it was a moment of – you don’t know where you are, you know, I couldn’t tell – all I saw is the accident happen, you know, just the trailer hits me, the prime and the trailer hits the front of my truck.

Q: What did you see coming towards you exactly?

A: A lump of steel.

Q: What was the prime mover doing when the trailer was sliding towards you?

A: It was sliding together. One thing was sliding – the prime mover was sliding this way and trailer was sliding this way.”

21. In cross-examination it was put to Mr Taouk that the corner of The Crescent, before the roundabout, was a tight corner. He described it as “a bit tight, yeah, not very tight”. It presented no problems to him when it was raining because he drove a rigid truck which was a small truck. He also drove very slowly around the corner. He recalled no radio message that day.

22. Mr Taouk gave evidence that the Kenworth was about 10 metres away from him when he saw that it was sliding. He did not remember if it had started to turn the corner or if it was coming straight ahead. He did, however, see it before the corner. At that point the truck was coming straight ahead, however, he didn’t notice whether the truck started to turn the corner.

23. By leave, Mr Taouk gave further evidence in chief that he was not able to make any assessment of the speed of the other truck when he first saw it. There was no further cross-examination or re-examination.

24. Leslee Horne was, at the time of the accident, also employed as a truck driver by HDG. He gave evidence that he left the yard at approximately 8.30am that day and whilst driving down the driveway to turn left onto Manchester Road, he noticed a massive oil slick coming out of the Bluescope Steel premises next door to the HDG yard. It was about half a metre to two-thirds of a metre wide and he described it as going all the way from the driveway up to the overpass. He clarified that that meant along Manchester Road, left onto Cumberland Road and right onto The Crescent to an overpass over the railway lines to the east of the accident site. He used his two-way radio to warn other drivers employed by HDG. He gave the following evidence:

“Q: You just say it as you said it then?

A: Well, I just said, ‘Listen fellows’, I said, ‘be careful when you’re coming back towards the yard.’ I said, ‘There’s someone or some imbeciles dropped a shitload of oil all over the road’. And I said ‘Just be careful’. I said ‘It’s you know, it’s not a real good spot’.”

25. On his return to the yard that afternoon he received notification of an incident and was required to return to the yard by an alternative route.

26. He observed the substance in the middle of the road when it was in his path driving in the same direction that the plaintiff had been driving. In cross‑examination it was put to him that the oil slick was on the left hand side as he was proceeding up The Crescent on the way to the overpass, but he answered:

“It was in the middle of the road.”

27. He was then asked about a statement he made in April 2009 and agreed that if the statement was inaccurate he would not have signed it. He had no recollection of being asked questions about contamination on the road, however, his statement said that he’d noticed the “containment” (meaning contaminant) at about 6.30am. He agreed that he then got onto the radio and asked everyone to check their trucks, as they might have leaked oil, and no one answered.

28. He said the statement was not accurate where he said that the “containment” stopped at HDG’s main gate. He had assumed that it was hydraulic fluid but was not sure whether it was diesel. He agreed that he had stated, “I stopped and checked what type of oil it was, and found it was a clear, hydraulic fluid.” He also agreed that he had said that it could have leaked out of some sort of hydraulic machine.

29. Mr Horne gave evidence that Bluescope Steel had trucks coming in and out all the time, along the same access road.

30. It was put to Mr Horne that the “containment” did not go all the way to the overpass, whereas in his statement he had said that it went all the way to the roundabout. He said there was no inconsistency. He restated that the oil slick was in the middle of the road.

31. The defendant/cross-claimant, Mr Richard Tahana, gave evidence that he had been employed by HDG since 1999. He had driven the Kenworth prime mover and trailer for approximately 24 months prior to 7 August 2008. He described the common route of access to the depot on Manchester Road was via the Cumberland Avenue onto The Crescent.

32. On 7 August 2008, he had made six return trips during his shift. Except for the last, all were made in fine weather. During the morning he heard an announcement over his two-way radio informing him that there was an oil slick on The Crescent. He had first noticed discolouration of that oil slick on the road during the morning. It was located in the lane for vehicles travelling south on The Crescent. He marked the area covered by the oil slick on exhibit A.

33. On his last return trip to the depot, he described the weather as “drizzling” and the road surface was wet. He had stopped at lights at the intersection of The Crescent and Alice Street, further to the east, and then proceeded along The Crescent. He gave this description:

“A: Now, as I’ve made the left turn, then coming back to the right, and back to the left again, noticing that the road was wet, I would have been – I would have been about 20 odd metres away from the actual beginning of the oil slick and I noticed that its – it had – the discolouration had spread a little bit more than what it originally was.

Q: Just pause there. At what speed where you travelling at that time?

A: Approximately 30, 40 kilometres.

Q: How far ahead of you was the oil slick on the road when you noticed the discolouration?

A: Approximately 20 metres.

Q: What did you do then?

A: I slowed up.

Q: How?

A: Initially taking the foot off the accelerator and then gradually and slowly applying the foot brake itself and it did slow me down.

Q: To what speed, approximately?

A: Approximately 30, 20 kilometres.

Q: You said, “30, 20 kilometres”. What do you mean by that?

A: 30 kilometres then, yeah.

Q: Please continue?

A: I noticed the – I continued to notice the oil spill on the road being more – being more widespread than initially was and I continued on with my – with my prescribed duties which was to simply drive back to the yard.

Q: At this point in time, was your foot on the accelerator, on the brake, or on neither?

A: It was on neither.

Q: What effect did that have, if any, on the speed of the truck?

A: It would have just – the – the truck would have just naturally slowed down its speed.

Q: Please continue?

A: And then I made the left hand turn into the – Cumberland and that brought me into a southerly direction. I viewed my inside mirror to ensure that I was clear of the – any obstacles, the kerb, power poles, anything else that could have been – could have been on the pavement or – or just the grass strip. Noticing that that was clear, I then – I then turned back to the right – the steering wheel, that is, so that I could align myself in a southerly direction on the Cumberland – on the Cumberland Road and when I was doing that particular movement I noticed the bonnet of the prime mover that I was driving at that particular time continue in a – in a reverse direction. In other words, it was not coming back to the alignment that I had steered it back towards, so that I would keep a straight line of travel. Also at the same time, I braked suddenly to try to bring the unit to a complete halt. That’s both the prime mover plus the trailer itself and on that at the same time noticing the rear or the prime move swinging around as well.

Q: Swinging around in which direction?

A: Going back in an easterly direction.

Q: To your left or to your right?

A: To my left.

Q: What happened to the rig? Did it stop or not?

A: Not it didn’t stop the rig had slid …

Q: What happened then?

A: The prime mover and the trailer were in the correct position during that particular movement but making a left hand turn into the Cumberland, but on noticing the nose or the bonnet of the prime mover not coming into alignment with the right hand steer – with the hand steer – coming back into alignment so that the prime mover would be in a southerly direction, I braked and I felt sliding on the prime mover axles and at the same time the trailer continuing on in a – would have been a west – west – west-south motion, meaning the trailer’s still following through so it’s not fully aligned with that particular left hand turn being made into the Cumberland Highway – Cumberland Avenue, sorry.”

34. Mr Tahana then described the trailer continuing in a westerly direction and entering the north-bound lane roadway of Cumberland Road where it came into collision with the plaintiff’s vehicle. When he turned the steering wheel to the left, and then back to the right, as he turned into the Cumberland Road, the steering had no effect on the truck.

35. At the time of the collision Mr Tahana said that there was a “light rain”. He remained at the scene for two hours. He was asked whether he made any observation of the road surface on The Crescent before sawdust was placed on it and said:

“A: Back on The Crescent of Auburn, the oil slick that was on the road, that had – its – it had spread more than what it originally was. From what we could make of it initially, it would have measured about two feet, and that’s during the time it was dry. But whilst it was wet, the width of the slick had spread even about another two feet on that—

Q: While you were at the accident scene, did you make any observation of the road surface between where the collision occurred and the roundabout further south?

A: Yeah, I made a couple of observations.

Q: What did you see and where?

A: On the Cumberland, its – on the Cumberland Road, that road was wet but I didn’t notice anything else.”

36. Mr Tahana gave evidence that he made a statement to a police officer at the scene whilst standing on the southern side of The Crescent, and made a subsequent statement to Senior Constable Bain at 8.44pm that night, almost six hours after the accident happened.

37. In cross-examination, Mr Tahana agreed that as a professional truck driver he earned his living from driving and therefore if he lost his licence his source of income would be gone. Notwithstanding that he had given evidence that he had been driving that particular rig for 24 months prior to the accident, he had in fact been driving the rig with the particular trailer for two hours prior to the incident, and had not driven with the trailer beforehand. However, he said he was not unfamiliar with the trailer as he had driven it in the yard of his employer. He agreed that the trailer was heavier than the one he normally towed, but would not agree to it being “much heavier”. He had told Senior Constable Bain that the trailer seemed “a little bit heavier, but that wasn’t a problem”. Mr Tahana agreed that he immediately knew that it was a serious accident involving his driving. He knew that the police were undertaking an investigation and that his role or involvement in the accident was a critical piece of information in that investigation. He identified his signature on the statement taken by Sergeant Morrissey in a police vehicle at the scene at approximately 3.55pm (exhibit 1).

38. Mr Tahana agreed that at the time he was interviewed by Senior Constable Bain he was concerned that he may get into trouble for the particular incident. He acknowledged that on previous occasions he had lost his licence. That occurred in 1996 and 2003. It did cross his mind that he may lose his licence as he was being interviewed by the police. He was asked during that interview about discolouration on the roadway as follows:

“Q: What you said was that you noticed some discolouration on the roadway prior to the approach to the point of impact itself. Was that statement accurate?

A: No that’s not accurate.”

39. Mr Tahana had told the police he noticed some discolouration on the road “prior to the approach of the point of impact itself”. By discolouration he meant “colours of the rainbow”. In his statement he had said to the police at [28]:

“I was driving east on The Crescent and taking notice of the weather conditions and as I approached the intersection of The Crescent and Cumberland Road I noticed an oily, greasy substance at the intersection and the length of that substance stretched east in the east-bound lane approximately three or four car lengths into the bend of the road intersection itself.”

40. He then said that that paragraph was not dealing with the events immediately before the collision. In the same statement he described the discolouration as follows:

“The substance or containment as you call it was simply a build‑up of road grease and in my opinion it looked to be about half a metre wide by three or four car length long.”

41. He meant by road grease that it incorporated everything from road dust, oil, fuel and other substances that naturally fall onto the road. He gave this evidence:

“Q: Did you not mean by that that the passage of many vehicles over that part of the road had dropped oil or grease or whatever over a period of time and that it built up this discolouration?

A: Yes.

Q: That’s what you believe this discolouration was?

A: The discolouration was made due to the – due to the substance oil, fuel and what other contaminants that may have dropped within that particular section of the roadway.”

42. He agreed that the roadway was commonly used by trucks and other heavy vehicles as a thoroughfare.

43. When asked whether he felt the brakes on his vehicle lock up prior to the intersection, he said that he did not notice them locking up. He had told the police that. He agreed that as the prime mover had ABS brakes, they would not lock up but the brakes on the trailer could and he also agreed that an unladen trailer is more likely to lock up its brakes than a laden trailer.

44. It was put to Mr Tahana that the jack-knife of the rig that he was driving was caused primarily by speed, namely, that he was going too fast into the corner, which he denied. He agreed that he had given the following answers to police questions:

“Q: How long do you think that would have occurred? Would it have been half a second, one second, one and half seconds, two seconds, to notice the discolouration?

A: Yes.

Q: And actually be in it; how long do you think in time would have evolved?

A: Yeah, well, a couple of seconds. I was noticing it when coming to – yeah, so I don’t know. I probably – I’ve seen it and a couple of seconds later it has come to my attention, thus I have slowed down. Because of that knowing that there’s oil or some other greasy substance on the roadway.

Q: So by that – so what you are trying to say is that you’ve noticed the substance on the roadway?

A: Yes.

Q 165: You’ve tried to slow the vehicle down to a much lower speed?

A: Yes.

Q: In order to travel – enter and travel through it safely?

A: Yes. Yes.

Q: But as it transpires, it just wasn’t really quite slow enough?

A: No.”

45. Mr Tahana was then asked:

“Q: What you were there saying was that your speed was not really quite slow enough?

A: Yes it was.

Q: But that’s what you’re saying; ‘as it transpired it just wasn’t really quite slow enough’, and you said ‘No it wasn’t’?

A: 30 kilometres is slow enough.

Q: Do you agree that the speed at which you approached this corner was not slow enough to avoid the dynamics of this collision?

A: I agree with that.”

46. There was no re-examination.

The Defendant’s Evidence

47. The defendant tendered the following statements:

Police Notebook Statement of Mr Tahana – Exhibit 1

Statement of Lee Leslee – Exhibit 2

Statement of Mr Tahana – Exhibit 3

48. In addition, a s 81 Notice dated 27 January 2009, together with a letter from TL Lawyers dated 4 August 2011 were tendered by consent as exhibit 4. By that notice, Mr Tahana admitted breach of his duty of care to the plaintiff.

The Expert Evidence

49. The cross-claimant relied on a report of Mr William Keramidas dated 18 April 2012 which was admitted over objection and became exhibit E. Mr Keramidas provided a supplementary report dated 4 March 2015, which responded to a report on behalf of the Nominal Defendant from Mr Paul Feenan. The supplementary report became exhibit F.

50. Mr Feenan’s report dated 27 October 2014 became exhibit 5. He too provided a supplementary report dated 4 April 2015, which became exhibit 6 in the proceedings.

51. Through Mr Feenan, a blown up sketch plan of the accident site was tendered, which became exhibit 7.

52. At the direction of the court the two experts met on 15 April 2015 and prepared a joint experts report, exhibit G. That report set out the following 12 areas of agreement between them:

1. The experts agree that the articulated combination driven by Mr Tahana, experienced a “jack-knife” phenomenon.

2. The experts agree with respect to the impact configuration and impact dynamics as outlined in our respective reports.

3. The experts agree that the additional mass of the trailer being towed by Mr Tahana, is unlikely to have significantly altered the dynamics of the vehicle prior to the “jack-knife” commencing, although it may have had some effect on the rate of rotation during the “jack-knife”.

4. The experts agree that the radius of the bend in question was 15m in the centre of the traffic lane applicable to Mr Tahana’s direction of travel.

5. The experts agree that in dry and contaminant free condition, the likely skid resistance level for this bend would be in the order of 0.55g for a heavy vehicle truck tyre.

6. The experts agree that in wet and contaminant free condition, the likely skid resistance level for this bend would be in the order of 0.45g for a heavy vehicle truck tyre.

7. The experts agree that in wet and contaminated condition (if it existed across the entire lane), the likely skid resistance level for this bend would be in the order of 0.05 to 0.12g, assuming it was a “diesoline” type fluid.

8. The experts agree that it is difficult to establish just off the photographic material how much contaminant existed on the road surface and its source.

9. The experts agree that at a speed of 21 km/h to 29 km/h on a wet surface without contaminants, the articulated combination should have been able to be driven around that bend without loss of traction, while if the entirety of the lane was contaminated with a “diesoline” substances, the speed at which it could be traversed without loss of traction would be about 15 km/h.

10. The experts agree that if the long skid mark was made by the off-side trailer tyres on Mr Tahana’s vehicle, then he hasn’t lined himself up for the bend appropriately.

11. Both experts agree that while each has formed an opinion with respect to the formation of the long skid mark (please see their respective reports), neither can say with certainty that it was or was not related.

12. Both experts agree that if the long tyre marks are related, then the table in Mr Feenan’s report (page 35) would be representative of the range of the vehicle’s approach speeds.

53. Under the heading “Areas of Remaining Disagreement”, the report stated:

“1. While some areas of disagreement may remain, the experts cannot identify any such disagreement which is of significance in the overall circumstances of this case.”

54. Also within this category of evidence was exhibit C, the Certificate of Expert Evidence prepared by Senior Constable B J Bain dated 25 November 2008 which had earlier been admitted over objection (see separate judgment dated 13 April 2015). That report resulted from the enquiries made by Senior Constable Bain who investigated the matter on behalf of the Crash Investigation Unit of the New South Wales Police. Under the heading “Conclusion”, Senior Constable Bain set out relevantly:

“12.2 About 3.00pm on Thursday 7th August 2008 a Kenworth prime mover registered number ZHJ-395(NSW) and towing a side-lifter semi-trailer registered number P-69805 (NSW) was being driven in a nominal westerly direction upon The Crescent at Auburn by Mr Richard Tahaha, the sole occupant of the vehicle.

12.3 Whilst entering into a sharp left-hand bend the unladen articulated truck transitioned into a ‘jack-knife’ condition, continued through the bend and into the opposing traffic lane.

12.4 Having crossed the centreline of the roadway the driver’s side drive-wheels and front portion of the semi-trailer collided with the front of a laden Mercedes rigid truck registered number QDQ-386(NSW) being driven in a nominal northerly direction and entering into the sharp right-hand bend by Mr Faoud Taouk, the sole occupant of the vehicle.

12.5 As a result of that impact traumatic leg injuries were occasioned to Mr Taouk.”

55. Senior Constable Bain then set out the following matters under the heading “Exclusions”, meaning that he had excluded them as contributing to the accident:

“12.6 The construction of the roadway was not a causal or contributory factor in the collision.

12.7 The speed of the Kenworth was not a causal or contributory factor in the collision.

12.8 The mechanical condition of the Kenworth was not a causal or contributory factor in the collision.

12.9 Driver impairment due to alcohol was not a causal or contributory factor in the collision.

12.10 Driver unfamiliarity with the vehicle and/or roadway were not causal or contributory factors in the collision.

12.11 The class of licence held by the driver of the Kenworth, Mr Richard Tahana was appropriate for the type of vehicle being driven.

12.12 The skid marks exhibited on the west bound lane, being the direction of travel of the articulated truck, could not be satisfactorily linked to that vehicle.”

56. Under the heading “Causation”, Senior Constable Bain set out the following:

“12.13 The primary causal factor in this collision was considered to be a petroleum-based subgstance (either diesel or oil), mixed with rainwater on the roadway which had drastically lowered the traction that would otherwise have been available at the road/tyre interface.

12.14 That substance had a direct effect on the articulated vehicle transitioning into a “jack-knife” condition. Once in that configuration, the driver Mr Tahana had no directional control of the vehicle unit.

12.15 The secondary causal factor in the collision was considered to be the adverse weather conditions. The mixture of a petroleum-based substance and water, under low-light conditions, were unlikely to have been visually apparent to the driver of the articulated truck until immediately prior to entering the contaminated area.”

57. Finally, the report expressed Senior Constable’s Bain’s opinion that there was insufficient evidence to institute summary or indictable proceedings against the driver of the Kenworth truck, Mr Richard Tahana.

58. Senior Constable Bain was ill and unable to give evidence (see exhibit B). As his opinions were not tested by cross-examination, they must be given careful scrutiny before being accepted in the determination of the issues between the parties.

59. Both Mr Keremidas and Mr Feenan were cross-examined. Their respective hypotheses and conclusions are set out so that the ambit of the disagreement between them may be readily understood. Mr Keramidas opined that the road surface was heavily contaminated with what appeared to have been diesel fuel or similar substance, thereby creating a significant reduction in the skid resistance properties of the roadway. The primary cause of the collision was a jack-knifed condition of the Kenworth trailer which was induced as a result of the contamination of the road surface.

60. Mr Keremidas further opined that the driving of Mr Tahana was appropriate under the circumstances and he took all reasonable measures to avoid the collision.

61. According to Mr Keremidas, Mr Taouk had the capacity to reduce the severity of the impact and potentially avoid the impact altogether if he had adopted a more cautious approach to the bend on first sighting the oncoming articulated truck, by manoeuvring his vehicle further to the west or closer to the kerb line of the Cumberland Road.

62. In Mr Keramidas opinion, the significant expanse of the roadway which was contaminated at the site was consistent with a major spill of diesel oil fuel, with the quantity exceeding what would be expected from the “ordinary passage of heavy vehicles and was strongly suggestive of an uncapped fuel tank or an inappropriately contained vessel transporting such a fluid”.

63. Mr Feenan opined that on the basis of the investigations made by the police, the skid marks on The Crescent, when extrapolated, aligned with the rear wheels of the trailer, thereby establishing that they came from the trailer attached to Mr Tahana’s truck. As such, he disagreed with Senior Constable Bain.

64. Mr Feenan opined that Mr Tahana’s stated speed of 30 kph as he approached the corner was in excess of the advisory speed for this corner of 25 kph. In his opinion, there were two causes of a jack-knife of a truck, namely, mechanical failure or driver error. He reported that according to “Emergency Services there were no other reports of spillage or foreign substances on the roadway that day”, and therefore the speed and manner of driving of Mr Tahana were the relevant issues causing the collision.

65. The evidence supporting these competing opinions, including cross‑examination upon them, is discussed where relevant below in the determination of the factual issues.

Issues to be Determined

66. The following issues are to be determined on the First Cross-Claim:

1. Was there a spillage of a substance, probably diesel fuel, on The Crescent, approaching the intersection of Cumberland Road and at that intersection, from an unidentified motor vehicle?

2. Was the collision caused or contributed to by the spillage, if any?

3. If so, was the spillage caused by the fault of the driver of the unidentified vehicle thereby rendering the Nominal Defendant liable for the collision?

67. On the Second Cross-Claim:

1. Was the collision caused or contributed to by the negligence of Mr Tahana?

2. If yes to (3) in the First Cross-Claim and (1) in the Second Cross-Claim above, how should liability be apportioned?

Factual Issues to be Determined

68. The issues set out above require the determination of a number of factual issues. They include:

1. Was there a contaminant on the roadway on the approach to the intersection of The Crescent and Cumberland Road, in the lane for western bound traffic?

2. If so, was it due to a spillage of a substance such as diesel fuel, or a build-up of grease on the road surface (or both), which, when combined with rain water made the road surface dangerously slippery?

1. Did the presence of water and contaminant on the surface of the roadway cause or contribute to the collision?

2. How did the collision occur?

3. In the circumstances, has the Cross-Claimant established, on the balance of probabilities, that the spillage was the fault of the driver of an unidentified vehicle so as to enliven s 34(1) of the Motor Accidents Compensation Act 1999 (“MACA”) and,

4. Was Mr Tahana negligent in the driving, management or control of his vehicle?

Legal Principles

69. The Cross-Claimant bears the onus of proof of establishing negligence of the Nominal Defendant on the balance or probabilities. In State of NSW v Fuller-Lyons [2014] NSWCA 424, Macfarlan JA (with whom McColl JA and Sackville AJA agreed) said at [31]:

“In an action for negligence, the plaintiff fails unless the evidence supports a positive inference implying negligence. This inference must arise “as an affirmative conclusion from the circumstances proved in evidence (Jones v Dunkel (1959) 101 CLR 298 at 304). The facts proved ‘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” (ibid at 304-5 citing Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5). The Court is not authorised ‘to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied’ (Jones v Dunkel at 305; see Luxton v Vines [1952] HCA 19; 85 CLR 352 at 359-360 and recently Minogue v Rudd [2013] NSWCA 345 at [66]; Curtis v Harden Shire Council [2014] NSWCA 314 at [18]; McLennan v Nominal Defendant [2014] NSWCA 332 at [86] and Coote v S & P Jackson Pty Ltd [2014] NSWCA 385 at [22].”

70. Thus, to establish that a party was negligent, the other party has to adduce evidence supporting a positive inference implying negligence on the part of that party, an inference which could be said to arise as an affirmative conclusion from the evidence and which was established to the reasonable satisfaction of the judicial mind. In Shoalhaven City Council v Pender [2013] NSWCA 210, McColl JA said at [47]:

“The evidence had to rise above the level of conjecture, could not be based on possibilities but had to be established as a matter of probability, and had to do more than give rise to conflicting inferences of equal degrees of probability (referring inter alia to Luxton v Vines (1952) 85 CLR 352 and Jones v Dunkel (1959) 101 CLR 298 at [304]).”

71. In Curtis v Harden Shire Council [2014] NSWCA 314, Beazley JA said at [174]:

“174 The Evidence Act 1995, s 140, which now specifies the standard of proof that applies in civil cases, restates the common law position that the civil standard of proof is on the balance of probabilities: s 140 (1). S 140 (2) provides that the matters that the court may (non-exclusively) take into account in deciding whether it is satisfied on the balance of probabilities include: the nature of the cause of action or defence (para (a)); the nature of the subject matter of the proceeding (para (b)); and the gravity of the matters alleged (para (c)). It has been accepted that para (c) reflects the common law principles stated in Briginshaw; see Pedler v Richardson (unreported, Supreme Court, Young J, 16 October 1997); Wily v Fitz-Gibbon (unreported, Federal Court , Hill J, 2 March 1998); Amalgamated Television Services v Marsden [2002] NSWCA 419 at [60]. In Qantas Airways Limited v Gama [2008] FCAFC 69 at [139], Branson J adopted the language of the High Court in Neat Holdings v Karajan Holdings, in finding that under s 140:

“ … the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what it is sought to prove.”

72. The duty of care required of a driver owed to users of the roadway is to take reasonable care for their safety, having regard to all the circumstances of the case. The relevant authorities are summarised conveniently in Marien v Gardiner [2013] NSWCA 396 per Meagher JA (with whom Macfarlan and Emmett JJA agreed) at [33] to [37]. Those principles were restated by the court in Warth v Lafski [2014] NSWCA 94 at [55] and The Nominal Defendant v Ross (No. 2) [2014] NSWCA 370 at [36].

Findings of Fact

73. I make the following findings of fact established by the evidence:

1. The intersection of Cumberland Road and The Crescent at Auburn occurs as a sharp bend in the roadway as depicted in the aerial plan, exhibit A, and the sketch plan, exhibit 7.

2. Vehicles travelling in a generally western direction along The Crescent face a sharp left-hand bend at the commencement of which is positioned an advisory speed sign depicting a right angled bend and a speed of 25 kph. Vehicles travelling on Cumberland Road towards the intersection in a generally north-east direction face a sweeping right‑hand bend onto The Crescent.

3. For a vehicle travelling in a westerly direction along The Crescent, the bend had a radius of 15 metres measured in the centre of the laneway.

4. The intersection of the two roads was in a heavy trafficable area which gave access to an industrial area and was an access route for heavy vehicles travelling to and from that area.

5. On 7 August 2008 the weather had been dry, however, in the early hours of the afternoon it commenced to rain and at the time of the collision, the roadway was wet.

6. There is no issue that the vehicle driven by Mr Tahana jack-knifed as a result of there being no traction of the drive wheels of the Kenworth prime mover he was driving on the road surface, which thereby caused the trailer to jack-knife.

7. There was no issue that the vehicle driven by Mr Tahana travelled in that configuration (i.e. jack-knifed) across onto its incorrect side of the road thereby colliding with the vehicle driven by the plaintiff.

Matters of Controversy and Findings of Fact

74. The following are the principal areas of controversy between the parties:

1. Was there a spillage of a substance, in all probability diesel fuel, on the western-bound lane of The Crescent, approaching the intersection of Cumberland Road and in the bend that comprised that intersection?

2. If not, was there a build-up of grease and other material on the roadway which, when mixed with the water, made the roadway dangerously slippery?

3. What was the speed of approach of Mr Tahana’s vehicle to the intersection?

4. Did Mr Tahana’s vehicle engage in heavy braking so as to lay down skid marks on The Crescent for a distance of 28 metres prior to the intersection?

5. What was the speed of Mr Tahana’s vehicle as he commenced to round the bend?

6. Was that speed too fast in the conditions?

75. Having regard to the whole of the evidence, I am satisfied, on a balance of probabilities, that there was a spillage of a petroleum based substance, in all probability, diesel fuel, on the western bound lane of The Crescent, approaching the intersection of Cumberland Road and in the bend that comprised that intersection. In coming to that finding, I accept the evidence of Mr Horne that he had seen a spillage from the entrance to the neighbouring property of HDG that was on Manchester Road, on Cumberland Road and proceeding along The Crescent to an overpass. He described the spillage as approximately half a metre to two-thirds of a metre wide and as being in the centre of the road. He reported the spillage by two-way radio to other drivers employed by HDG. Further, Mr Tahana had heard an announcement over his two-way radio informing him that there was an oil slick on The Crescent during the morning of 7 August 2008. He had made five deliveries during that day using the same route, and had first noticed discolouration on the road from that spillage during the morning. He marked on exhibit A the area covered by that oil slick which demonstrated that it was on the approach to the intersection of Cumberland Road for vehicles heading in a westerly direction. I also accept the evidence of Sergeant Morrissey, that he observed an oily liquid on the road at the scene of the accident from the point of impact of the vehicles down Cumberland Road to the roundabout, but also along The Crescent for a distance somewhere between 10 and 30 metres. Mr Henry, of the New South Wales Fire and Rescue Service, also noticed, in addition to fuel spilling onto the road from the plaintiff’s vehicle, which was running into a gutter on the other side of the road, a large oil spill or oil slick on the roadway of Cumberland Road, extending a distance approximately 20 metres behind the plaintiff’s truck. Finally, Mr Musri, who was driving his own vehicle behind the truck being driven by Mr Tahana along The Crescent, saw evidence of the spillage on the wet roadway, which appeared to him as “bluey-yellowy colours”. He observed that on the road surface of The Crescent that he had driven along, namely the lane for western bound traffic.

76. The Nominal Defendant has relied on the omission by Mr Tahana to say anything to the police in his statement taken within an hour of the collision about there being a contaminant on the road surface. He had merely stated “At the time the road was wet”.

77. When interviewed by the Crash Investigation Unit, some six hours after the incident, Mr Tahana had told the police that he had seen discolouration on the roadway as he approached the intersection which he identified as “colours of the rainbow”. In a later statement made to an investigator on 3 March 2009 (exhibit 3), he said at [28]:

“I was driving east on The Crescent and taking notice of the weather conditions and as I approached the intersection of The Crescent and Cumberland Road, I noticed an oily, greasy substance at the intersection and the length of that substance stretched east in the east bound lane approximately three or four car lengths into the bend of the road/intersection itself.”

78. Mr Tahana went on to state:

“33 I believe the road surface was to blame for the accident and if the oily, greasy substance wasn’t on the road my vehicle would not have jack-knifed the way it did. It lost all traction when the wheels went over the substance.

34 The substance was pre-existing as one of our drivers on that particular morning noticed the substance at approximately 8am and did give warning to drivers of the company trucks over the two-way radio to beware of the substance and for the drivers to take care.

35 This driver is currently away on holidays and I cannot recall his name, but his first name is Lee and I will find out his details and let you know.

36 The substance or containment as you call it was simply a build-up of road grease and in my opinion it looked to be about a half metre wide by three or four car lengths long and it was from the beginning of the left-hand bend in the road and continuing to the intersection of The Crescent and Cumberland Roads.

37 I believe the substance could have been a mixture of oil, maybe grease and diesel.

38. This roadway is commonly used by trucks and other heavy vehicles as a thoroughfare as there are a lot of trucking companies in the area.”

79. The omission of Mr Tahana to mention the oily substance on the road surface to the police in exhibit 1 is not determinative of the factual issue as to the state of the road surface. He did refer to it later that evening in his interview by the Crash Investigation Unit and consistently with that, in his statement (exhibit 3) and his evidence. The presence of spillage on the roadway was corroborated by the witnesses I have referred to above and therefore I find, on the balance of probabilities, that there was a spillage of a substance, probably diesel fuel, on the road surface of The Crescent as it approached the intersection with Cumberland Road.

80. I further find that the spillage observed by Mr Horne and by Mr Tahana earlier that day, was spread across the roadway by the rain which fell during the afternoon of 7 August 2008. Given the high volume of heavy traffic along this route, and the acute angle of the bend, I also find, on the balance of probabilities, that there was a build-up of grease and other material on the roadway which would have contributed to the slippery nature of the road surface. By the time Mr Tahana’s vehicle approached the intersection just after 3pm, I find that the surface of The Crescent for vehicles heading in a westerly direction was dangerously slippery.

81. I accept the evidence of Mr Tahana that, as he approached the intersection, along The Crescent, he was travelling at a speed somewhere between 30 and 40kph. I further accept his evidence that he reduced his speed by taking his foot off the accelerator and then slowly applying the foot brake, and that his speed reduced to approximately 30kph as he approached the intersection.

82. I do not find that Mr Tahana engaged in heavy braking of his vehicle so as to lay down skid marks on The Crescent for a distance of 28 metres prior to the intersection as exhibited in exhibit 7. First, the roadway was wet at the time Mr Tahana’s vehicle travelled along it. The skid marks, which were identified by the Crash Investigation Unit, only appeared visible when the roadway dried out. Further, whilst the evidence remained untested by cross-examination, I accept the reasoning set out in Senior Constable Bain’s Certificate of Expert Evidence (exhibit C) in paragraph [8.24] to [8.30] thereof. Given the lack of physical evidence that the tyres on the semi-trailer had locked or skidded, I prefer the opinion of Mr Keramidas in his second report dated 4 March 2015 that the skid marks on the roadway as identified by the police could not be linked to the vehicle driven by Mr Tahana, to the opinion of Mr Feenan, that those skid marks and the Kenworth semi-trailer were “intrinsically linked”. To so find would be entirely speculative, given the lack of any objective evidence supporting that view, and the uncertainty involved in extrapolating those marks towards the end position of the vehicles.

83. I further find that the speed of Mr Tahana’s vehicle, as he commenced to round the bend, was approximately 30kph. Whilst I accept his evidence that he had the foot off the accelerator, and that some speed would have washed off as he approached the intersection, I am satisfied that on the balance of probabilities that his speed was above 25kph and closer to 30kph.

84. I also find that that speed was too fast in the circumstances. The corner was subject to a speed advisory sign which clearly showed the sharpness of the bend and a recommended speed of 25kph. The speed advisory sign was to be used by motorists as a guide to the recommended speed for that corner in good conditions. Not only were the conditions not good, given that it had been raining and was raining at the time Mr Tahana was approaching the intersection, he had travelled along that route on five previous occasions on that day, and had received a warning as to the spillage of an oily substance on the roadway, and had observed it himself. As he approached the corner he saw, some 20 metres in front of him, the discolouration caused by the spillage of diesel fuel on the roadway in front of his vehicle. Given his knowledge of the state of the roadway prior to the rain, he should have anticipated that caution would be required in negotiating the bend and approached it at a lower speed than the recommended advisory speed. I therefore find that Mr Tahana’s speed as he commenced around the bend was too fast in the conditions.

Determination

85. Applying the legal principles referred to above to the facts as I have found them, the issues set out in [66] and [67] are determined by me as follows:

1. On the balance of probabilities I find that there was a spillage of a substance, probably diesel fuel, on The Crescent, approaching the intersection of Cumberland Road and at that intersection, from an unidentified motor vehicle.

2. Determining whether that spillage was caused by the fault of the driver of the unidentified vehicle involves inferential reasoning based on the evidence before the court – see Dominello v Nominal Defendant [2009] NSWCA 95. In that case, Hanley JA, (with whom Beazley and Macfarlan JJA agreed) said:

“92 The legal test in such a case is that referred to in Luxton v Vines (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 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.”

86. So too here, having regard to the evidence referred to above as to the presence of the spillage on the roadway, I find that on the balance of probabilities it was caused by a spillage of diesel from an unidentified vehicle which had passed along the roadway earlier that day without its fuel cap attached at all, or with its fuel cap poorly attached so that a spillage of diesel fuel occurred along the roadway.

87. The question then arises as to whether the Nominal Defendant is liable.

88. Section 34 of MACA provides as follows:

“(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 be established, be brought against the Nominal Defendant.”

89. The Nominal Defendant has submitted that s 34(1) has no role to play if the contamination on the relevant road surface area was caused by the build-up of road grease by the passage of a great many trucks and motor cars over a period of time. In those circumstances it is not possible to identify “a motor vehicle” nor is it possible to identify to identify the relevant “fault” of that owner or driver. I accept that submission. However, in this case, I have found that contamination on the relevant road surface was caused principally by a spillage of diesel from an unidentified motor vehicle. Although a build-up of road grease may have also contributed to the dangerous nature of the road surface, I find that the section is enlivened, and that the failure to attach the fuel cap on that vehicle, or to properly attach it, does constitute fault on the part of the owner or driver of that vehicle.

90. Although Dominello, supra, concerned a motor vehicle accident on 3 July 2002, and therefore did not involve the application of Part 1A of the Civil Liability Act 2002 (“CLA”), the reasoning of Hanley JA is apposite, as follows:

“102 … 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 a 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 a 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.”

91. I find that the collision was caused by the presence of the spilled diesel fuel on the roadway, mixed with rainwater so as to make the road surface dangerously slippery. That in turn caused an absence of resistance to the drive wheels of the prime mover being driven by Mr Tahana, which caused his articulated vehicle to jack-knife, and travel onto its incorrect side of the roadway, thus coming into collision with the vehicle being driven by the plaintiff.

92. I also find that the collision was caused or contributed to by the negligence of Mr Tahana by him travelling at a speed which was excessive in the circumstances. This is a case to which the CLA applies, and I am obligated to apply ss 5B and 5C of the CLA in determining whether Mr Tahana (and for that matter, the driver of the unidentified motor vehicle) breached their duty of care. In each case, there was a risk or harm being a risk of injury or death to other road users if the drivers did not breach their duty of care. In each case, that risk was foreseeable, and was not insignificant. The question then to be determined is whether a reasonable person in the drivers’ positions would have taken precautions (i.e. driven at a speed which was not excessive in the circumstances; and ensure the fuel cap was properly attached respectively).

93. In applying s 5B(2) to that question, in each case, there was a high probability that harm would occur if care was not taken. That harm was likely to be serious indeed to other road users and the burden of taking such precautions to avoid the risk of harm was not great. I therefore find in respect of both Mr Tahana, and the driver of the unidentified vehicle, breach of their respective duties of care to other road users.

94. As to causation pursuant to s 5D of the CLA, generally in motor vehicle accident cases where negligence is established pursuant to ss 5B and 5C, there is little issue that factual causation, determined by the “but for” test, follows pursuant to s 5D(1)(a), and once that is established, there is usually no issue that it is not appropriate for the scope of the appellant’s liability to extend to the harm caused to the injured party pursuant to s 5D(1)(b) – see for example Nominal Defendant v Bacon [2014] NSWCA 275 at [15] and [16].

95. In determining whether the collision was caused or contributed to by the negligence of Mr Tahana, I have also had regard to the admission made by the insurer in the s 81 Notice (exhibit 4). That Notice dated 27 January 2009, admitted breach of duty of care to the plaintiff in relation to the circumstances of the accident, and has not been withdrawn.

Apportionment

96. Having found that the negligence of both Mr Tahana and the driver of the unidentified vehicle caused and/or contributed to the collision, an apportionment must be made as to the relative responsibility of each driver to the accident. Notwithstanding that it was a case concerning contributory negligence, the relevant principles for apportionment in this exercise are those set out in the High Court’s decision in Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 as follows:

“The making of an apportionment is between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. the degree of departure from the standard of care of the reasonable man (Pennington v Norris, citation omitted) and of the relative importance of the acts of the parties in causing the damage (authorities and citations omitted). It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

97. Here, learned Senior Counsel for Mr Tahana has submitted that if it was found that his speed was excessive, Mr Tahana’s contribution to the harm suffered by the plaintiff can be no greater than a maximum of 30%.

98. In coming to a determination of apportionment between the parties, I am satisfied on the evidence that the major contributing factor to the collision was the presence of spillage on the roadway caused by the negligence of the driver of the unidentified vehicle. That spillage, once it commenced to rain, led to the road surface being dangerously slippery and both experts agreed that the corner in question could not be safely negotiated at a speed greater than 15kph. However, Mr Tahana had been aware since the morning that there was present on the roadway a contaminant. As an experienced driver, he must have been aware that when he was returning on his sixth journey that day, in circumstances where it was raining and the roadway was wet, that that spillage would have spread and that he would have to take additional care in safely negotiating the bend when The Crescent reached Cumberland Road. He saw the contaminant on the roadway a short distance of 20 metres before he came to it, however, that was insufficient time to decrease his speed to a safe speed in the circumstances. Given his knowledge of the presence of the spillage on the roadway, I find that he was 40% liable for the collision and the plaintiff’s injuries.

Conclusion and Orders

99. I therefore conclude that the driver of an unidentified vehicle was negligent in driving his vehicle along Cumberland Road and The Crescent with its fuel cap either unattached or poorly attached so as to cause a spillage of diesel fuel onto the roadway.

100. I further find that Mr Tahana was negligent in the driving, management and control of his motor vehicle by driving at a speed which was excessive in the circumstances.

101. I have determined that Mr Tahana was 40% liable for the plaintiff’s injuries and therefore the Nominal Defendant will be liable for 60% thereof.

102. I therefore make the following orders:

1. On the First Cross-Claim, there will be a judgment for the Cross-Claimant, Mr Tahana, against the Nominal Defendant as to 60% of the amount of the Plaintiff’s damages.

2. On the Second Cross-Claim, there will be a judgment for the Cross-Claimant against Mr Tahana and HDG in an amount representing 40% of the Plaintiff’s agreed damages.

3. As each Cross-Claimant was partly successful on the Cross-Claim, I order that each Cross-Claimant bear his and its own costs of the proceedings, being the Cross-Claims.

4. I order the exhibits to be returned forthwith.

5. If either party seeks a special costs order, such application should be made by Notice of Motion, together with an affidavit in support, filed and served in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

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Decision last updated: 04 May 2015