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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWDC 55
Decision Date: 24 April 2015

CaseChat Overview and Summary

Faoud Taouk brought a claim against Richard Tahana for damages arising from a motor vehicle accident on the Hume Highway in Victoria. The accident occurred when Mr Taouk's vehicle collided with a contaminant on the road, which had been spilled from a vehicle travelling ahead of him. Mr Tahana brought a cross-claim against Mr Taouk, alleging that Mr Taouk's driving was negligent. The primary dispute was over the identity of the vehicle responsible for the spillage, and whether Mr Taouk was negligent in his driving.

The court had to determine several legal issues. First, whether Mr Tahana could be held liable for the spillage from his vehicle, given the vehicle was unidentified. Second, whether Mr Taouk was negligent in his driving. Third, whether Mr Tahana's cross-claim was valid, and if so, whether there was a basis for apportionment of liability between the parties.

The court held that neither party could be definitively identified as the one responsible for the spillage. Given the lack of evidence to determine the specific vehicle, the court concluded that the cross-claim was valid but could not be apportioned. The court found that Mr Taouk was not negligent in his driving, as he had reacted appropriately to the unexpected hazard. Consequently, the court awarded a verdict for each party on their respective claims and cross-claims, leaving the apportionment of liability to be determined by further evidence if available.

Orders

Orders of the court

Verdict for each Cross-Claimant. For orders see [102]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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