Johnson v Nominal Defendant

Case [2003] NSWCA 153
CITATION: Johnson v The Nominal Defendant [2003] NSWCA 153
HEARING DATE(S): 13/06/03
JUDGMENT DATE:
13 June 2003
JUDGMENT OF: Meagher JA at 31; Beazley JA at 32; Ipp JA at 1
DECISION: Appeal dismissed with costs.
CATCHWORDS: NEGLIGENCE - Diesel slick on road - Whether inference of negligence of driver/owner of unidentified motor vehicle can be drawn. ND
CASES CITED: Incorporated Nominal Defendant v Knowles [1987] VR 138
Jones v Dunkel (1959) 101 CLR 298
Nominal Defendant v Hall (2001) 34 MVR 553
Padget v Motor Accidents Insurance Board (1996) 23 MVR 411; (1997) 26 MVR 147
Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121
West v Government Insurance Office of New South Wales (1981) 148 CLR 62

PARTIES :

 Harry Michael Johnson (Appellant)
The Nominal Defendant (Respondent)
FILE NUMBER(S): CA 40966/02
COUNSEL: B Gross QC/T Meakes (Appellant)
R Stitt QC/H Silvester (Respondent)
SOLICITORS: Carneys Lawyers (Appellant)
Abbott Tout (Respondent)
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 9710/01
LOWER COURT
JUDICIAL OFFICER : 		Sorby DCJ


                          CA 40966/02
                          DC 9710/01

                          MEAGHER JA
                          BEAZLEY JA
                          IPP JA

                          Friday, 13 June 2003
HARRY MICHAEL JOHNSON v THE NOMINAL DEFENDANT
Judgment

1 IPP JA: This is an appeal against a decision of Sorby DCJ given in an action in which the appellant claimed damages for personal injuries from the Nominal Defendant, the respondent in this appeal.

2 The appellant was injured on 26 October 1998 at about 6 am when, while travelling along Euston Road Alexandria, his motor cycle skidded on a diesel slick on the road.

3 The trial judge found:

          “[I]n some way, but arising out of the use of a motor vehicle as defined, a quantity of diesel came to be on Euston Road near the roundabout and the presence of the diesel on the road caused the Plaintiff’s motorcycle to lose traction, go out of control and cause him injury”.

4 To succeed against the respondent, the appellant had to establish negligence on the part of the owner or driver of an unidentified motor vehicle. This was the fundamental issue at the trial. His Honour found that all other requirements to fix liability on the Nominal Defendant were established.

5 Sorby DCJ correctly noted that the appellant had to establish that the spill of diesel on the roadway was of a kind that did not ordinarily occur without negligence: Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121 at 134.

6 A fire brigade officer inspected the roadway shortly after the accident and Sorby DCJ accepted his description of the scene. The officer said that the spillage was on the northbound lane closest to the middle of Euston Road which had dual carriageways both ways. He said that the spillage did not take up the whole of the roadway, but was one metre from the median line, about a half a metre wide and extended from the roundabout northwards along Euston Road in a northerly direction for twenty to thirty metres. He said that the…

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Johnson v The Nominal Defendant [2003] NSWCA 153
Case
[2003] NSWCA 153
Decision Date

CaseChat Overview and Summary

The case of *Johnson v Nominal Defendant* concerned an appeal heard by the New South Wales Court of Appeal, comprising Meagher, Beazley and Ipp JJA. The dispute arose from a motor vehicle accident where the plaintiff, Ms Johnson, suffered injuries due to her vehicle skidding on a diesel slick on the road. The slick was caused by an unidentified motor vehicle, and the plaintiff sought to recover damages from the Nominal Defendant, who represents uninsured or unidentified drivers.

The central legal issue before the Court of Appeal was whether, in the absence of direct evidence identifying the vehicle that leaked the diesel, an inference of negligence on the part of the driver or owner of that unidentified vehicle could be drawn. This involved considering the principles of circumstantial evidence and the burden of proof in establishing negligence in a road accident context.

The Court of Appeal affirmed the trial judge's finding that the plaintiff had failed to establish negligence on the part of the driver or owner of the unidentified vehicle. Their Honours reasoned that while the presence of the diesel slick was undisputed, there was insufficient evidence to infer that the slick was caused by the negligence of the driver of the unidentified vehicle. The Court held that the mere presence of a hazard on the road, without more, does not automatically give rise to an inference of negligence. It was not possible to conclude, on the balance of probabilities, that the diesel was leaked due to the driver's carelessness rather than some other cause, such as a mechanical failure that occurred without fault.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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