Galluzo v J.J. Richards and Sons Pty Ltd

[2018] NSWDC 165

District Court

New South Wales

Medium Neutral Citation:	Galluzo v J.J. Richards & Sons Pty Ltd [2018] NSWDC 165
Hearing dates:	4-6 December 2017
Date of orders:	22 June 2018
Decision date:	22 June 2018
Jurisdiction:	Civil
Before:	Wilson SC DCJ
Decision:	1. verdict for the defendant; 2. the plaintiff to pay the defendant’s costs; 3. liberty to apply to vary order (2) if necessary; 4. the exhibits to be returned.
Catchwords:	Motor vehicle accident – blameless motor accident – whether driver at fault
Legislation Cited:	Motor Accidents Act 1999 Civil Liability Act 2002
Cases Cited:	Luxton v Vines (1952) 85 CLR 352 Wyong Shire Council v Shirt (1980) 146 CLR 40 Voulis v Kozary And Ors (1994) 180 CLR 177 Fox v Percy (2003) 214 CLR 118
Category:	Principal judgment
Parties:	Joseph Galluzo (Plaintiff) J.J. Richards & Sons Pty Ltd (Defendant)
Representation:	Counsel: Mr R Sheldon SC/Ms E Welsh (Plaintiff) Mr K Rewell SC/Mr R O’Keefe (Defendant)   Solicitors: Brydens Lawyers (Plaintiff) Curwoods (Defendant)
File Number(s):	2014/353716
Publication restriction:	None

Judgment

1. The plaintiff claims damages for injuries suffered when a vehicle which he was driving left the road and rolled down an embankment (“the accident”). The vehicle was owned by the plaintiff’s employer, the defendant in these proceedings. Damages have been agreed between the parties.

2. The plaintiff’s case was put on the basis that the accident was caused either by the negligence of the defendant (in its maintenance of the vehicle) or that the accident was a “blameless accident” as defined in the Motor Accidents Compensation Act1999 (‘the Act’).

3. The case was opened by senior counsel for the plaintiff on the basis that his primary case was that the accident was a blameless accident.

4. In addresses, the claim in negligence was abandoned. As it is still a pleaded case, I will provide short reasons for rejecting it.

5. The case was put that the defendant permitted the plaintiff to drive a vehicle which was defective. Although the meaning of “defective” was not further elaborated on in the pleadings, I have approached this limb of the plaintiff’s claim on the basis that it is alleged that the defendant failed to adequately maintain the front near side tyre of the vehicle resulting in it blowing out and causing the accident.

6. The evidence as to the system of maintenance of the defendant’s vehicles and in particular, the tyres, was not disputed. The evidence established that the tyres were inspected by Brooks Tyres on a daily basis with a view to repairing or replacing any tyres which showed any sign of wear or defect. In addition, the defendant itself had a system of regular inspection and repair for the trucks generally, including the wheels and tyres. The tyres were also inspected by the drivers before the start of their respective shifts.

7. The plaintiff’s evidence was that the tyre fitted to the near side front of the truck he was driving at the time of the accident “blew”. He told the Court that he heard a sound like a shotgun before losing control of the vehicle.

8. In order to make an assessment of the system of maintenance and its relationship to the accident, it is necessary to determine what caused the tyre to rapidly deflate. There is no evidence which permits any specific finding as to that matter. The only evidence as to the cause of deflation was the separation of the tyre from the rim of the wheel. This will be further considered in the context of blameless motor accident, below.

9. There is no evidence as to how the rapid deflation of the tyre could have been prevented, or the risk of it reduced, by any additional maintenance or care on the part of the defendant.

10. The uncontroversial evidence as to the maintenance established that the system adopted by the defendant was more than adequate. When one considers the general principles relating to liability found in Wyong Shire Council v Shirt (1980) 146 CLR 40 and later reflected in Part 1A Division 2 of the Civil Liability Act2002 (‘CLA’), the plaintiff has failed to make out a case in negligence.

11. I find that there were no additional precautions which the defendant could have taken. A reasonable person in its position would not have taken any additional ameliorative measures against the risk of harm due to tyre failure.

12. Further, I find that the system of maintenance and repair in place exceeded that which a reasonable person in the defendant’s position would have implemented.

13. Accordingly, I find that there was no fault or breach of duty of care by the defendant.

14. Consideration turns to the plaintiff’s alternate case. Blameless motor accident is defined in section 7A of the Act. For present purposes, it is sufficient to observe that if there is fault on this part of the owner or driver then the definition is not met and the provisions do not arise. I have already found that there was no fault on the part of the owner which leaves only the question of whether the motor accident was caused by the fault of the driver.

15. As part of that enquiry, I also note the terms of section 7E of the Act which disentitles the recovery of damages if the motor accident was caused by an act or omission of the driver.

16. It is, therefore, necessary to determine what caused the truck to leave the roadway and travel down the embankment resulting in the plaintiff’s injuries.

17. The plaintiff’s case was that he was driving the truck on the road surface when the front near side tyre deflated causing him to lose control over the vehicle and leave the road.

18. The plaintiff described driving the vehicle in a regular manner when he heard a loud pop sound like a shotgun. The vehicle then pulled to its left, left the road surface and travelled down the embankment coming to rest in a paddock at the front of the property to the left hand side of the road.

19. The case put was that the failure of the tyre whilst the truck was on the road surface was not caused by the fault of the owner or the driver.

20. It is not in dispute that, when the truck came to rest in the muddy paddock, the tyre had separated from the rim and had deflated.

21. The questions to be determined are:

1. what event caused the tyre to deflate; and

2. when did that event occur?

22. The plaintiff’s case, put simply, is that, through no fault of the driver, the tyre spontaneously deflated. Further, it is the plaintiff’s case that this event occurred when the vehicle was being driven in the usual way on the bitumen surface of the road.

23. The defendant submitted that the deflation occurred after the truck left the road surface and in the course of travelling down the embankment. That is, after the plaintiff had already lost control of the truck. The deflation followed the separation of the tyre from the rim and that could have been caused by a number of factors, including the lateral force applied to the tyre as the vehicle travelled forward and to its left down the steep embankment or, alternatively, as a result of the wheel striking some solid object after it left the road.

24. In considering these alternatives, I am mindful of the need to consider and give appropriate weight to the objective evidence. Such evidence includes:

1. the presence, or otherwise, of marks on the road surface;

2. the presence, or otherwise, of gouge marks on the road surface;

3. the presence, or otherwise, of scrape marks on the road surface;

4. the truck travelled in a forward/leftward direction down the embankment;

5. the movement of the truck in that direction would have applied force to the tyre from the left to the right of the wheel rim;

6. the damage to the wheel depicted in the photographs show that the tyre was displaced from the rim from left to right, that is, inwards on the rim;

7. the force applied to the wheel would have been most severe at the point where the sloping embankment met the flat paddock;

8. there were objects in the course of travel of the vehicle down the embankment which could have damaged the wheel rim or caused the tyre to be displaced, resulting in deflation;

9. those objects include but cannot be limited to:

1. trees;

2. fence posts;

3. a concrete culvert;

10. the damage to the front near side of the truck showed significant impact damage.

25. In weighing the significance of the objective evidence, I have also given careful consideration to the expert and other evidence.

26. I found the plaintiff to be a credible witness. The central dispute concerning his evidence was whether or not he heard a pop or a shotgun like sound whilst driving on the road surface. Regrettably, I find that I do not accept his evidence as to that matter. In most other respects, I considered him to be an honest and frank witness, doing his best to provide a truthful account of what occurred in the moments prior to and during the accident. For the reasons given below, I find that he was mistaken about hearing the loud pop sound whilst the truck was travelling on the road.

27. I do not accept that he heard a pop or gunshot sound prior to losing control of the vehicle for the following reasons:

1. no mention of that significant fact was made when the plaintiff provided his statement dated 16 October 2014. In the statement there is no reference to hearing anything just the sensation of the truck pulling to the left and he concluded from that “feeling” that the front left tyre had blown;

2. he made no mention of the sound in the affidavit he swore on 28 May 2015. He stated that he could tell from the pulling sensation that the front left tyre had “blown out or become flat”;

3. he made no mention of the sound in the affidavit he swore on 10 June 2015. In this affidavit he provided a description similar to the previous statement. The reference to “blown out or had become flat” demonstrated that he was unaware of the reason for deflation. That is, the plaintiff was not certain whether the tyre failed by blowing out or some other reason causing to become flat;

4. immediately after the accident, he did not mention that he heard a pop or gunshot sound to Mr Mirow at the scene of the accident; and

5. immediately after the accident, he did not tell Mr Gater that he heard a pop or a loud noise.

28. I prefer the earlier and, particularly, the contemporaneous statements of the plaintiff to the evidence given in court more than 6 years after the accident (see Voulis v Kozary And Ors (1994) 180 CLR 177).

29. The issue of whether there were any gouge or scrape marks on the road is also relevant. If there had been a sudden deflation causing a loud ‘pop’ sound then it would be expected that the wheel rim would have come into contact with the road causing a mark.

30. There were two categories of evidence as to the presence, or otherwise, of gouge marks.

31. The evidence as to the absence of gouge or scrape marks comes from:

1. Mr Mirow (T51.35); and

2. Mr Gater (T136.47).

32. I accept that evidence. I found both witnesses to be credible and impressive. They both made concessions against the defendant’s interests, without being pressed to do so. They were tasked, by reason of their jobs with the defendant, to inspect the scene.

33. The only contrary evidence came from the plaintiff who said that he showed the police marks on the road surface. No mention was made to that observation in any of the plaintiff’s statement or affidavits (Exhibits 1-3) or indeed in the notebooks of either of the attending police officers (Exhibit 4). In those circumstances, I prefer the evidence of Mr Mirow and Mr Gater.

34. More importantly, I prefer the objective evidence as to the absence of gouge marks over the plaintiff’s evidence as to when the deflation occurred (see Fox v Percy (2003) 214 CLR 118). I am comforted in that finding given the absence of any reference to the sound of the tyre deflating in any of the plaintiff’s prior statements or affidavits.

35. The evidence of Mr Mirow and Mr Gater, together with the absence of any objective evidence as to same would support a finding that the tyre separated from the rim after the truck left the road surface. It follows that the deflation of the tyre would not have been the cause of the vehicle leaving the road. This was also supported by the expert evidence.

36. The three experts were qualified, experienced and impressive witnesses. They gave evidence concurrently. It was apparent that they were doing their best to assist the court and not advocating for a particular outcome. As a result there was considerable consensus between them as to matters of significance.

37. Questioning of the experts commenced with the proposition that, after the accident at the depot, the tyre fitted to the front near side at the time of the accident was observed:

1. in the paddock, at rest, in a deflated state;

2. later, in the defendant’s workshop, fitted to a rim and inflated without any apparent leakage.

38. Before considering the significance which the experts attached to those assumptions, I intend to determine whether the assumptions have a valid basis in evidence.

39. As to the first matter, there was no dispute that, when the truck came to rest in the paddock, the front nearside tyre was deflated. That observation was made by the plaintiff, Mr Mirow and Mr Gater. The plaintiff’s case was based on that fact.

40. The second assumption was more controversial. The foundation for it is the evidence of Mr Mirow and Mr Gater. Mr Mirow gave evidence that he observed the tyre inflated when he saw it back in the workshop. The tyre was, at that time, not losing any air (T56.46). He was certain that it was the same tyre because of the marks and mud on the walls of the tyre (T57.58).

41. Mr Mirow was cross-examined as to this matter. He confirmed that he saw the tyre “deflated on the rim” (T65.32). Whilst he did not observe the tyre being inflated (T65.42) he was unshaken as to his observation of the same tyre in an inflated state in the workshop after the accident.

42. Mr Gater’s evidence was also clear on this point. He saw that particular tyre again in the workshop. It was on a rim, blown up and not leaking air (T139.22-28). He could tell that it was the same tyre as it had “all the gouges and the mud still over it”. (T139.32)

43. Mr Gater was cross-examined and agreed that the observations he made of the tyre in the workshop were casual observations. That is, made as he walked from his office and into or through the workshop. Nevertheless, the observations were made from a distance of two to three feet (T144.45) and he maintained that it was the same tyre which was on the truck at the time of the accident. (T143.35)

44. Both witnesses were highly credible. Their evidence compelled a finding that the tyre which was fitted to the front near side wheel of the truck at the time of the accident was later re-inflated and, at that time, was not leaking air. This could only be the position of the tyre itself was not damaged.

45. I am, therefore, satisfied that the assumptions put to the experts have a solid foundation in the evidence.

46. Returning to the experts, they unanimously agreed that, based on the assumptions put to them, that the tyre was not damaged (T94.44-95.3).

47. The evidence of the experts then turned to whether there could be spontaneous deflation of an undamaged tyre.

48. Mr Casey agreed that would not have occurred without damage to the rim or some other cause (T96.42)

49. Mr Jamieson seemed to accept the proposition and offered as a possible other cause “a malfunction on the valve somehow” (T97.8). He accepted, however, that in those circumstance, the deflation would occur slowly (T97.13).

50. Mr Stuart-Smith said that there was “no realistic prospect” of an undamaged tyre deflating absent any damage to the rim (T97.25).

51. Under questioning from senior counsel for the plaintiff, Mr Stuart-Smith accepted that deflation could occur through a “catastrophic failure of the valve” (T97.28). He did not, however, accept that such deflation would be rapid (T97.36-49).

52. Dr Casey was asked the same question and, whilst conceding that deflation through valve failure was possible he said that it was unlikely (T98.33). Whilst Mr Jamieson and Mr Stuart-Smith both said that they agreed with Mr Casey’s comments, it is a little unclear as to precisely with what they were agreeing.

53. The experts were then asked to assume that there was a “dent” in the rim after the accident. Again, the evidence of Mr Mirow and Mr Gater both comfortably support that assumption. They were then asked whether a dent in the rim could cause a breaking of the seal between the rim and the tyre. All experts agreed with that proposition, without qualification.

54. When asked whether such a break in the seal could cause a very rapid deflation of the tyre, both Dr Casey and Mr Stuart-Smith unhesitatingly said that it could. Mr Jamieson said that it would depend on the size (presumably of the dent) (T99.3-24).

55. The expert evidence then turned to the cause of the dent. The plaintiff’s evidence as to the movement of the truck prior to losing control of the vehicle were put to the experts.

56. Mr Casey said that there was nothing in that scenario to offer an explanation for the rim being dented (T99.41). He said that in order to dent the rim, a “significant impact” with the wheel would be required. He gave examples of the wheel impacting with “very large gutters, very large blocks of concrete, pieces of steel…large sized objects” (T99.48). He agreed that such an impact would have been obvious to the driver (T100.8) as it would require “very large movements of the actual truck itself.”

57. Mr Jamieson agreed that a large pothole would do it (T100.26) and that it was much more likely than not that the sort of impact described would be very apparent to the driver (T100.30).

58. Mr Stuart-Smith agreed with the other experts and added that he “would expect a prudent driver to have been aware of it” (T100.40).

59. It was then asked of the experts that if, by the time the truck left the road, the plaintiff had not noticed any impact of that sort whether that fact affected the likelihood that the rim was damaged before the truck left the sealed surface.

60. Dr Casey said that it made it unlikely that, in those circumstances, the rim was damaged before leaving the sealed surface.

61. Mr Jamieson said that it would be unlikely that a prudent driver would not notice an impact which would dent a steel rim, suggesting that he agreed with the proposition being put.

62. Mr Stuart-Smith agreed with both experts.

63. An attempt was made to undo this evidence in careful questioning by the senior counsel for the plaintiff. In my opinion, the evidence initially provided was not diluted in that process.

64. An assessment of the plaintiff’s evidence and the expert’s evidence permits the following findings:

1. the plaintiff did not notice any impact between any tyre fitted to the truck or any other object prior to leaving the sealed surface;

2. on the balance of probabilities, the wheel did not impact with a large pothole or any other “large sized objects” before leaving the sealed surface on the road;

3. there was no damage to the rim at the time the truck left the sealed surface of the road. This finding is supported by the objective evidence that there were no gouge or scrape marks on the surface of the road;

4. it follows, from this and earlier findings, that damage to the tyre or damage to the rim could not have been the cause of the vehicle leaving the road surface.

65. The expert evidence was then directed to what could have caused the dent in the rim and the deflation of the tyre. Given the findings above, it is not necessary to make a finding as to what caused the dent to the rim after leaving the road.

66. This analysis leaves only the possibility of deflation of the tyre by a failure of the valve. This suggestion arose from the evidence of Mr Jamieson (T97.8). Mr Jamieson went on to agree that deflation caused by valve failure would occur slowly (T97.13).

67. Mr Stuart-Smith agreed that a catastrophic valve failure could cause deflation but not rapid deflation (T97.36). Mr Casey considered a valve failure a possibility but one that was unlikely (T98.33).

65. I note that valve failure was categorically excluded by the experts in their joint report.

66. In my view, there are three factors which suggest that valve failure, even catastrophic, did not occur in this accident.

67. First, if there was such a failure it would not have been of sufficient significance to reduce the volume of air in the tyre so as to result in damage to the rim whilst the truck was on the sealed surface. Again, I rely upon the absence of gouge and scrape marks.

68. Secondly, the evidence does not permit a finding that valve failure would cause a sound like a gunshot.

69. Thirdly, if the valve attached to the tyre did fail then it is highly improbable that without it being replaced, the tyre could have been re-inflated when back in the workshop.

70. Accordingly, I reject the suggestion that loss of control of the vehicle was caused by the failure of the valve.

71. If I am mistaken about this the plaintiff’s claim still fails for failure to show any causal connection between any act or omission of the owner of the vehicle and the accident. There was no causal link, negligent or otherwise. The defendant did nothing more than permit or require the plaintiff to drive its vehicle.

72. The plaintiff has failed to establish negligence on the part of the defendant or that the truck left the road surface for any reason other than the fault of its driver, the plaintiff.

73. In those circumstances, fault is not established as against the defendant and the plaintiff is disentitled to rely upon the blameless motor accident provisions of the Act.

74. In the absence of any evidence as to any other cause, I find that, as the plaintiff was driving the heavily-laden truck around a right hand bend in wet conditions, the truck left the road surface and slid down the embankment.

75. Further, I find, on the balance of probabilities, that the cause of the truck leaving the road was the manner in which it was driven by the plaintiff. This finding is made in the absence of any other reasonable or rational evidence as to the course of the accident.

76. Accordingly, I find that the sole cause of the accident and the plaintiff’s injuries was his failure to properly steer or control the vehicle at a safe speed around the right hand bend.

77. It is not necessary to determine what caused the tyre deflation but I do find that it occurred after the plaintiff had lost control of the truck.

78. Similarly, it is not necessary to make a finding about what caused the damage to the rim. There are many possible causes, no one more probable than the other. To choose between them in these circumstances would involve impermissible speculation and conjecture (see Luxton v Vines [1952] HCA 19).

79. I make the following orders:

1. verdict for the defendant;

2. the plaintiff to pay the defendant’s costs;

3. liberty to apply to vary order (b) if necessary;

4. the exhibits to be returned.

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Decision last updated: 25 June 2018