Jovic v Lamont

[2007] NSWCA 47

New South Wales

Court of Appeal

CITATION:	JOVIC v LAMONT [2007] NSWCA 47
HEARING DATE(S):	30 January 2007
JUDGMENT DATE:	16 March 2007
JUDGMENT OF:	Ipp JA at 1; McColl JA at 2; Campbell JA at 3
DECISION:	1. Appeal allowed.; 2. Set aside the judgment in the plaintiff's favour in proceedings No 72 of 2004 in the District Court at Wagga Wagga, and in lieu thereof enter a judgment for the defendant.; 3. Each party to bear its own costs of the appeal.; 4. Plaintiff to pay the defendant's costs of the District Court proceedings.; 5. Grant to the plaintiff a certificate under the Suitors Fund Act 1951 in respect of the appeal.
CATCHWORDS:	NEGLIGENCE – essentials of action for negligence – reasonable foreseeability – where nitrous oxide bottle fitted to motorcycle – explosive failure of fitment – whether injury sustained by volunteer inspecting bottle when it exploded was reasonably foreseeable – whether bottle inherently dangerous - APPEALS – appeal from District Court to Court of Appeal – nature of appeal by rehearing – correction of error – whether point not taken below able to be argued on appeal - TRIALS – issues – confining of issues at trial – whether election made to confine issues at trial - EVIDENCE – role of inferences drawn in accordance with Jones v Dunkel (1959) 101 CLR 298 in reaching conclusions on disputed matters of fact – whether all witnesses to a disputed incident need be called
LEGISLATION CITED:	District Court Act 1973 Motor Accidents Compensation Act 1999 Suitors Fund Act 1951 Supreme Court Act 1970 Supreme Court Procedure Act 1900
CASES CITED:	Allesch v Maunz (2000) 203 CLR 172 Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn & Anor v Ashrafinia [2001] NSWCA 243; (2002) Aust Torts Reports 81-636 Branir Pty Ltd and others v Owston Nominees (No 2) Pty Ltd and another (2001) 117 FCR 424 Coulton v Holcombe (1986) 162 CLR 1 Dare v Pulham (1982) 148 CLR 658 Fox v Percy (2003) 214 CLR 118 Gould and Birkbeck and Bacon v Mount Oxide Mines Ltd (1916) 22 CLR 490 Hampton Court Ltd v Crooks (1957) 97 CLR 367 Huddart Parker Limited v Cotter (1942) 66 CLR 624 Hypec v Mead [2004] NSWCA 221 Jones v Dunkel (1959) 101 CLR 298 Manly Council v Byrne and Anor [2004] NSWCA 123 Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1936] AC 108 Saffron v Societe Miniere Cafrika (1954) 100 CLR 231 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Tipper v Williams (No 1) (NSWCA, 12 May 1993, unreported) Williams v Smith (1960) 103 CLR 539
PARTIES:	Dusan Jovic - Appellant Noel Laurie Lamont - Respondent
FILE NUMBER(S):	CA CA 40189/06
COUNSEL:	B J Gross QC; K Kelleher - Appellant I Roberts SC; A Black - Respondent
SOLICITORS:	McMahons Ntional Lawyers - Appellant Walsh & Blair - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	72/04
LOWER COURT JUDICIAL OFFICER:	Sidis DCJ
LOWER COURT DATE OF DECISION:	22/3/06

CA 40189/06

IPP JA
McCOLL JA
CAMPBELL JA

16 MARCH 2007

DUSAN JOVIC v NOEL LAURIE LAMONT

Judgment

1 IPP JA: I agree with Campbell JA.

2 McCOLL JA: I agree with Campbell JA.

3 CAMPBELL JA: In the very early hours of Sunday, 30 July 2000 the plaintiff was seriously injured. The principal injury was to his left hand, which was damaged in a way that eventually resulted in the amputation of the three central fingers of the hand, and very significant damage to the thumb and little finger of that hand. He also suffered some other, less severe, injuries.

4 The plaintiff sued the defendant in the District Court at Wagga Wagga, alleging that his injuries resulted from the explosion of a nitrous oxide cylinder that was fitted to a motorbike owned by the defendant, and that it was the negligence of the defendant that had caused the explosion. Sidis DCJ heard the case in Wagga Wagga over three days, on Thursday, Friday and Monday, 16, 17 and 20 March 2006, and gave judgment in favour of the plaintiff on Wednesday 22 March 2006. The defendant appeals against both the finding of liability, and her Honour’s assessment of the quantum of damage.

5 The plaintiff has been a member of the Bandidos Motorcycle Club since 1990. In 2000 that club had a clubhouse at Richard Close, near Loyalty Road, North Rocks. The plaintiff’s injury was sustained in the immediate vicinity of that clubhouse.

6 The defendant was, at the time of the plaintiff's injury, registered as the owner of a 1989 motorcycle, registered number WQK – 26.

7 Because one of the issues in the case relates to the manner in which the trial was conducted, it is necessary to examine the evidence and course of the trial in some detail.

The issues on the pleadings

8 The plaintiff’s pleaded case was, in broad terms, that it was the defendant's motorcycle that had the nitrous oxide system fitted to it, that the defendant had fitted the nitrous oxide system to the motorcycle (or allowed it to be fitted or remain fitted), that the explosion of the cylinder occurred when the plaintiff was, at the defendant's request or with his permission, crouching next to the cycle, and that the accident was caused by the defendant's negligence.

9 There was also an allegation in the statement of claim that the connection of the nitrous oxide system to the engine of the motorcycle was a "defect" within the meaning of the Motor Accidents Compensation Act 1999 (“the MAC Act”). That allegation was not a necessary part of any pleading of the tort of negligence against the defendant. I assume that the pleader put it there because of a practical concern about whether the defendant was covered by the third-party policy. That coverage arises in the following way. Under the definitions contained in section 3 of the MAC Act, a "driver" includes a person riding and operating a motorcycle, and a person for the time being in charge of a motor vehicle. Section 3 also defines "injury" to mean:

" … personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during
(i) the driving of the vehicle, or
…
(iv) such use or operation by a defect in the vehicle …"

10 The compulsory third-party policy under the MAC Act, so far as relevant to the present case, has its terms prescribed by section 10:

"The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle … in the use or operation of the vehicle in any part of the Commonwealth (whether or not on a road)…
In this policy words and expressions have the same meanings as in the Motor Accidents Compensation Act 1999 ."

11 Thus, as on the plaintiff's case his injuries were sustained while the motorcycle was stationary, though with its motor running, it would be clear he had suffered an "injury" within the meaning of the MAC Act if it was caused by a defect in the motorcycle. Whether he had suffered an “injury” within the meaning of the MAC Act (as opposed to whether he had suffered loss and damage of any kind as a consequence of negligent conduct) was irrelevant to whether the tort of negligence had been committed.

12 The defence that was current at the time of the trial was an Amended Notice of Grounds of Defence dated 31 May 2005. It denied all of the allegations in the plaintiff’s statement of claim and alleged contributory negligence. It also asserted:

“2. The Defendant states that if a nitrous oxide system was affixed to the Defendant’s motorcycle, as alleged, such nitrous oxide system compromised vehicle design rules and, consequently, the vehicle’s registrable status, so that the compulsory third party policy under the Motor Accidents Compensation Act 1999 , as amended, would not respond.
3. Furthermore, the Defendant states that any such nitrous oxide system does not constitute a defect in the vehicle per se or a defect relevant to the use or operation of the motor vehicle, as required by the provisions of the Motor Accidents Compensation Act 1999 , as amended .”

13 Those allegations were both irrelevant to whether the defendant had committed any tort of negligence. Rather, it is clear that the defendant's legal advisers perceived them as relevant to whether the third-party policy would respond, if the plaintiff otherwise made out his case of negligence.

The Plaintiff's Case

14 The plaintiff’s evidence at the trial was that on 29 July 2000 he was a member of a group of 20 or so people, some of whom were members of the Bandidos and some of whom were not, who rode from the Bandidos clubhouse at Richard Close, North Rocks to Manly, to attend a bike show. One member of that group was a man, known to the plaintiff only as Bluey, who was riding a red Harley Davidson motorbike, of a type known as a Heritage Softail. On the way to Manly, the plaintiff noticed that that bike was making a rattling noise that he could hear above the noise of the bike, but the cause of which he could not then identify. After spending a few hours at the bike show, they all returned to the clubhouse at North Rocks. The plaintiff spent some hours there, then telephoned his girlfriend to ask her to pick him up and take him home. While waiting for her, in Loyalty Road, the red Softail ridden by Bluey arrived. It was still making the rattling noise that the plaintiff had heard earlier. The plaintiff, with the rider's consent, went to investigate the source of the noise. He saw that there was a nitrous oxide bottle attached to a structural member of the bike called the swing arm, at the rear of the right-hand side of the bike. That nitrous oxide bottle was cylindrical, about 20 cm high, and 14 cm in diameter. At a time when the motor of the bike was not activated, the plaintiff crouched down, with one knee on the ground, on the right-hand side of the bike just forward of the rear wheel. At the plaintiff's request, Bluey started the motor, and gave it a rev. The plaintiff noticed that the bottle moved up and down along the swing arm, and that it touched the rear exhaust. He “heard a funny hissing noise, and then I don't remember too much after that." He felt pain in both his hands, and saw that "most of my left hand was ripped to shreds". He said he had not seen Bluey since the accident.

15 Another witness called by the plaintiff was Mr Glen O'Sullivan. Mr O'Sullivan had attended the bike show at Manly on 29 July 2000. He gave evidence of having seen there a red Harley Davidson bike that was "very customised", with a lot of extras. He noticed that the components of the bike were "very distinctive".

“Q. In what way?
A. Just the pattern on the handlebars, the motor, just the way the bike was set up in general.
Q. What was it about the motor?
A. Just it had – it had like a nitrous kit on it.”

16 He was told by Mr Troy Kenda, at the bike show, that that was Bluey’s bike. He arrived at Loyalty Road after midnight, and found the plaintiff sitting in the gutter with his hand wrapped in a towel or a T-shirt, already injured. Mr O'Sullivan drove the plaintiff to Westmead Hospital. Later, at the request of the plaintiff’s girlfriend, Ms Nicole Millen, he wrote down the registration number of Bluey's bike, after seeing that bike outside the Pendle Hill Hotel, and recognising it as the same bike he had previously seen at Manly. He gave that registration number to Ms Millen.

17 The plaintiff also called Mr Troy Kenda. He gave evidence that he had known a man he referred to as Bluey for about six months, having met him "approximately half a dozen; perhaps a bit more" times at the Pendle Hill Hotel. Bluey was also referred to by other people by the nickname of Doozy, and responded to that name. He had a distinctive sort of motorcycle.

“Q. What was distinctive about it?
A. It was red in colour, or – depends which way you look at it – various different coloured red, but it had excessive chrome on it and it had a nitrous oxide bottle on the right hand side of it, with a distinctive red --
…
Q. And it had a nitrous oxide bottle?
A. A nitrous oxide bottle on it with a distinctive NOS sticker on it.
Q. A distinctive NOS?
A. NOS sticker on it – nitrous oxide system.
Q. NOS sticker?
A. Yes.
Q. On which side of the bike was the bottle mounted?
A. On – looking at it from behind, on the right.”

18 At the Manly bike show on 29 July 2000, he pointed out Bluey’s bike to Mr O'Sullivan, and told him that it was Bluey’s bike. Mr Kenda also attended the club premises at Loyalty Road that night, and saw Bluey near his motorcycle. He saw Bluey start the engine, and saw Bluey looking down to the right of his bike, "and there appeared to be something wrong to his bike – with his bike". Mr Kenda heard a rattling noise. He offered to get one of his friends to have a look at the bike, and summoned the plaintiff. Mr Kenda saw the plaintiff bend over the bike, looking at the motor,

“… and he was engaged with conversation with Bluey, and then once I seen they were working -- working out -- working out on the motorbike … and I saw that was okay and proceeded just to walk off and I was talking to other people".

19 Next, Mr Kenda

“heard a large bang like a tinny sort of bang behind me, and I've turned around and Noel was crouched down and there were people rushing about him; a bit of commotion”.

20 Mr Kenda got the plaintiff “a towel to put around his arm. I think he already might’ve had something around his hand".

21 A difficulty for the plaintiff at the trial arose from the fact that, before he had commenced proceedings against the defendant, he had commenced proceedings against the registered owner of a different motorcycle, registered number WQK – 08. Those proceedings were abandoned when it was realised that WQK – 08 had been in a police holding yard on the night the plaintiff sustained his injury. The plaintiff's counsel called oral evidence seeking to explain how that mistake had been made. Ms Millen, and the plaintiff's solicitor, Mr Lincoln Kennedy, each gave evidence on that topic. It was to the effect that the erroneous identification had been made during a period when the plaintiff was in prison. Mr Kennedy had asked Ms Millen to find out the registration number of the motorcycle involved; she had passed that request on to Mr O'Sullivan and Mr Kenda; one of them had given her information about the registration number, which Ms Millen had passed on to Mr Kennedy.

22 As well, the plaintiff’s counsel tendered the particulars of registration relating to WQK - 08. Those particulars describe the vehicle make as "home-made" and the year model as 1999. The Harley Davidson Softail motorcycle had at one time prior to the trial (the evidence does not make clear exactly when) been “reintroduced after a 15-year hiatus". In those circumstances, motorcycle registered number WQK – 08 seems to be different to the motorcycle described by the plaintiff and his witnesses.

23 The plaintiff also called expert evidence from Mr Colin Simpson, who has qualifications both in engineering and as a mechanic. He gave evidence – which was not challenged – about how nitrous oxide systems work. When nitrous oxide is injected into the combustion chambers of internal combustion engines, it is heated to a temperature sufficient to cause it to break down into its component elements of nitrogen and oxygen, producing a mixture of gases containing significantly more oxygen than air contains, enabling a significant increase in power to be obtained from the engine. He explains:

“As the nitrous oxide system is supplementing the volume of air that is being drawn into the engine, it can be seen that large quantities of nitrous oxide (and air) can be expected to be utilised. For this reason, and because of the limited volume storage available on vehicles generally, the system is only utilised as a “power shot” system ie., one that is utilised over a short, sharp period of time. Typically it would be used in a racing situation and, more often than not, where increased acceleration is the desired result, ie., when “drag racing”.
The system is controlled by a handle bar mounted switch, in the case of a motor cycle mounted system, and can only be operated for a short period of time (measured in seconds).
In summary, a nitrous oxide injection system on a motor cycle is a system that is intended to provide a large increase in power (torque) for a short burst period of time with the prime benefit being a sharp decrease in acceleration times, such as is desirable when drag racing.”

24 Mr Simpson's evidence was that, while nitrous oxide is non-flammable, the NOS brand of system that was available at the time he prepared his evidence, and that was suitable for installation on Harley Davidson motorcycles, stores the nitrous oxide in a bottle that contains the gas under a pressure of approximately 950 psi. That bottle is manufactured from an aluminium alloy material. It is attached to the frame of the bike by a bracket that has a circular loop protruding from it, designed to hold the bottle in place. That loop appears to be adjustable in size. I infer that if the loop is loosened, that enables the bottle to be removed for the purpose of being refilled with nitrous oxide, while if it is tightened when the bottle is inside the loop it should hold the bottle firmly.

25 When preparing his reported dated 2 August 2005, Mr Simpson obtained from the Internet a copy of the then current version of the NOS manufacturer’s brochure. That brochure explicitly categorised some of its statements as "warnings", and said, concerning a warning "failure to comply with instructions may result in injury or death." One such warning was "Never drop or violently strike the bottle. Doing so may result in an explosive bottle failure.” He expressed the opinion:

“The looseness, or rattling, of the bottle strongly suggest to the writer that the aluminium alloy bottle was loose in its mounting and was thus able to rub on its mounting, or some other component.
Aluminium alloy materials, being relatively soft, have a known propensity for rapid wear during vibration induced rubbing events and it is the view of the writer that the wall thickness of the gas bottle was probably significantly compromised such that the ability of the bottle to withstand the internal pressure within was also severely compromised.”

26 According to Mr Simpson, both in being small (of 10 ounce capacity), and in being manufactured from aluminium alloy, the nitrous oxide bottles that are suitable for fitting to a motorcycle differ significantly from the steel bottles commonly used to hold high pressure gases for medical users, or for ordinary use such as barbecues or compressed air for scuba-diving. The aluminium alloy has about one-third of the strength of steel.

27 Mr Simpson also expressed the opinion:

“it is simple engineering (and physical) fact that if a cylinder of any type is loose within its mounting, then it will vibrate and is thus subject to fretting and wear. If the cylinder is made of an aluminium alloy, as is probably the case in this matter, then the wear rate can be expected to be rapid.”

28 Mr Simpson noted that his instructions were that the plaintiff had suffered the following injuries:

”1. Loss of ring, middle and index fingers on left hand.
2. Injury to left hand and wrist.
3. Fracture to right hand.
4. Left knee punctured and torn.
5. Cuts and abrasions.
6. Sight blurred.”

29 He expressed the view:

“The movement of the bottle in the hands of the Plaintiff may well have punctured the already compromised bottle wall and with internal pressures, such as that which is expected, ie., of the order of 950 psi, the failure of the wall of the gas bottle must occur in an explosive manner. If that were to occur whilst the Plaintiff (or any other person) was crouched next to it then very clearly everything in the explosive path of that bottle is likely to be struck by the fractured components of the bottle and, indeed, the blast of the gas itself.

In the opinion of the writer, the injuries quoted above, including that injury described involving the left knee, fits the description of the accident event whereby it is alleged that the nitrous oxide bottle suddenly exploded with the Plaintiff crouched beside it and (probably) holding the bottle with his left hand.”

30 Mr Simpson also gave evidence that it was possible for an exploding canister of compressed gas to cause a "cold burn" when it comes in contact with skin:

“As the gas is explosively released, there is a very rapid drop in temperature and it’s that very rapid drop in temperature with the gas when it comes into contact with any part of the body that causes the cold burn.”

The Defendant's Cross-Examination of the Plaintiff’s Witnesses

31 Several documents caused the defendant's legal advisers to approach the plaintiff’s story with extreme suspicion. I mention them at this stage of the judgment because they significantly influenced the way the defendant's counsel, Mr Kelleher, ran the trial.

32 An Emergency Department admission form that was filled out at Westmead Hospital on 30 July 2000 records the "incident details" as "hand caught in "fan" while fixing car -- walked into". However a note on that form relating to that entry records "story given by patient (? Incorrect)", and "additional info from friend: MBA: rider, slid off bike”. I take it that in that entry “MBA” is an acronym for "motorbike accident". Another document produced at Westmead Hospital on 30 July 2000 gives the history of the incident as being "touched fan belt, crushing left-hand. Lacerations below right eye, plaintiff put left-hand into fan belt cannot remember past [illegible]. Smells of ETOH and ? engine smoke"

33 As well, there was a police record, made on the morning of 30 July 2000, that stated:

“About 1.30am on 30/7/00 Police were called to the above address in response to a call of a person being injured. The original call stated that a person had his hand blown off by a gun shot or explosion. On police arrival there was no sign of the victim. There was a small amount of blood on the roadway.”

34 The people the police spoke to there said they had not seen the incident, and were not prepared to give their details to the police. The report stated that there were no witnesses to the incident, and it was unknown who the victim was, or where he was taken.

35 Another police record, made on 27 December 2000 arose from the police receiving a file concerning a positive blood sample obtained at Westmead Hospital from the plaintiff on 30 July 2000. It continued:

“Enquiries revealed Poi 1 was taken to Westmead Hospital on this date. When Poi 1 was spoken to about this he stated he had been playing around with a nitrous cylinder on a motorcycle, nfd at 3 Richard Close, North Rocks at the Banditos Motorcycle Club.
There is no record of a motor vehicle collision Poi 1 may have been involved in and no further charges laid in relation to the blood sample. However, there is information an unknown male had been the victim of a shotgun blast at the location. Police attended on this night but persons at the location were unwilling to co operate with Police.
It appears Poi 1 has been shot in the left hand by unknown person/s and lost three fingers as a result. He has not complained to Police and there are no further leads as to the Poi.”

36 As well, an insurance investigator representing the defendant's insurers had obtained a statement from the defendant on 1 December 2005, in which he asserted that he had never held a licence to ride a motorcycle in New South Wales, and had never ridden one. He denied that he was known by the nickname of "Bluey". He said that his brother in law, Zika Radovanovic, was a member of the Bandidos, that at his brother-in-law's request he had had a Harley Davidson motorcycle registered in his name, but that his brother-in-law had always had the care of the motorcycle.

37 Insofar as Mr Kelleher's cross-examination of the plaintiff was directed to liability, it put to him specifically that the story the plaintiff had told about the nitrous oxide bottle exploding was not true. It put to him that he had told the hospital that his hand was caught in a fan while trying to fix a car, and that a friend had told the hospital that he was rider of a motorbike who slid off and injured himself. The plaintiff did not accept any of these propositions. Mr Kelleher sought to implicate the plaintiff in the provision of the incorrect registration number WQK - 08, but the plaintiff did not agree that he had contacted anyone in connection with providing that registration number. When asked to give a physical description of Bluey, the plaintiff described him as a "stocky bloke, long hair", but not with red hair. In his claim form relating to the accident, the plaintiff had nominated as witnesses not only Mr Kenda and Mr O'Sullivan, but also Corey van Tongeren, and John Fahey. Mr Kelleher obtained the plaintiff's acknowledgement that he knew where each of those men were, namely Sydney. Finally, the plaintiff was cross examined about some criminal convictions he had.

38 The cross-examination of Mr O'Sullivan was directed solely to his identification of motorcycle WQK – 26 as being the same motorcycle he had seen at Manly, on the day of the plaintiff's injury.

39 The cross-examination of Mr Kenda consisted of three questions. They all related to the identity of Bluey, and whether more extensive inquiries than had been made might have found him.

40 There was no cross-examination of Ms Millen, or of Mr Kennedy.

41 The cross-examination of Mr Simpson established that he had never seen the particular bottle that was attached to the motorbike in question, that he did not know of what alloy it was made, and that different alloys had different properties of ductility. It then went on to test his hypothesis that wear of the aluminium, caused by it suffering repeated impacts, could cause an explosion of the type that the plaintiff had described.

An Important Exchange

42 Before the close of the plaintiff's case, the trial judge asked Mr Kelleher, in substance, whether it was his defence that the incident did not involve the same motorcycle as the plaintiff alleged it involved. The following exchange than occurred:

“KELLEHER: That’s one of the matters in issue.
HER HONOUR: What is the other matter in issue?
KELLEHER: The other matters are with regard to the actual causation of the injury itself and there may be a question of defect, et cetera, under the Act. Sorry your Honour, I’m just having trouble – that sun --
HER HONOUR: Yes, I understand, it’s just left me Mr Kelleher, it’s your turn.
KELLEHER: -- but in answer to your Honour’s question that is one of the matters raised.”

43 Mr Kelleher had been appearing at the trial instructed by the solicitor for the insurer of the motorcycle WQK – 26. This happened notwithstanding the presence on the pleadings, for over nine months before the trial began, of "defences" clearly aimed at challenging the defendant's entitlement to indemnity under the insurance policy.

44 Immediately after the exchange I have just quoted, the trial judge raised a question of whether the defendant ought to have been separately represented. Mr Kelleher said he needed instructions. After a short adjournment, Mr Kelleher informed her Honour that he had spoken to the defendant, who said he would seek to have separate representation. Mr Kelleher requested that the matter be stood down. After another matter was interposed, Mr Roberts, counsel for the plaintiff, opposed any application, on the ground that a defect in the vehicle was not a reason for an insurer denying liability under the statutory policy, and in any event section 119 of the MAC Act required an insurer to give the plaintiff particulars alleging that a claim has not been made in good faith before the insurer could apply to the court to be joined as a party to the proceedings, and no such particulars had been provided. After some further discussion, in the course of which Mr Kelleher made clear that it was not the insurer's application to be separately represented, another exchange occurred:

“HER HONOUR: Is it to be argued that he’s not indemnified Mr Kelleher, is the question?
KELLEHER: That’s one of the defences, yes your Honour.
HER HONOUR: On what basis is it to be argued --
KELLEHER: On the basis that the vehicle’s not in registrable condition, and again it depends on the evidence in that regard.”

45 Her Honour expressed the view that it was Mr Kelleher who was representing the defendant, and that the trial would go on. The evidence in the plaintiff's case then continued.

The Defendant's Evidence

46 The defendant gave evidence in person, of similar effect to the statement he had given to the insurance investigator. That statement itself was admitted into evidence. He also gave evidence that he had not changed his appearance in the last six or seven years, that his hair had always been cut short, he was 1.7 m tall, and of a slight to moderate build.

47 The defendant’s counsel tendered a report from an expert witness, Mr Michael Griffiths, who had engineering qualifications. Mr Griffiths had been asked to report on three questions:

“1. Whether the fitting of the nitrous oxide system compromised [sic] vehicle design rules;
2. Whether the motor cycle with the nitrous oxide system was a registrable vehicle;
3. The likelihood that the nitrous oxide bottle spontaneously exploded.”

48 In answer to the first two questions, he pointed out that the New South Wales Roads & Traffic Authority’s Light Vehicle Code of Practice Release No 1, January 1994, section 3.1 Engines, clause 3.1.5.7.3 Nitrous Oxide Systems said that "the use or fitment of nitrous oxide injection systems is not permitted". In consequence, he said, a vehicle fitted with a nitrous oxide system is not permitted for use on New South Wales roads.

49 Concerning the third question, he expressed the view that "a properly designed and fitted nitrous oxide system should not be able to explode." (I interpolate that that opinion was of little relevance, given that the essence of the plaintiff's case was that the nitrous oxide bottle in question had not been properly fitted.) He also expressed the view that, if there had been an explosion of the type the plaintiff alleged, it would be expected to result in other damage to both other parts of the person's body in close proximity, and to the vehicle to which it was fitted, and that it did not appear there was evidence of any such damage.

50 Mr Griffiths, however, had either not been instructed about the full extent of the injuries the plaintiff had suffered, or had not taken those into account. The hospital clinical notes, at the time of the plaintiff's admission, recorded him as having sustained abrasions to the mid-forehead, a superficial abrasion to the interior margin of his right eye, that his eyebrows were singed, that he had small abrasions near his sternum, a deep laceration to the base of the thumb of his right hand, and superficial abrasions to his left knee. Mr Griffiths agreed, in cross-examination, that injuries like that were consistent with an explosive bottle failure. I mention here that there was also evidence that X-rays of the plaintiff’s left knee disclosed "at least three small high-density radiopacities consistent with linear foreign body fragments are noted in the region of the suprapattelar pouch in the deep subcutaneous region", and that an X-ray of his right hand found that "a metallic density is projected over the proximal phalanx of the middle finger in keeping with a metallic foreign body."

The Defendant’s Submissions at Trial

51 At the hearing of this appeal, there was available a full transcript of counsel’s submissions at the trial. In submissions, so far as liability was concerned, Mr Kelleher addressed the judge on whether the correct defendant had been sued – i.e., whether the motorbike involved in the accident was the defendant’s motorbike rather than someone else's – and also on whether the incident had occurred in the manner in which the plaintiff indicated, namely by explosion of the nitrous oxide bottle. On the latter point, they were two aspects – first, whether the plaintiff was to be accepted in saying that the cause of the accident was explosion of the bottle, rather than an injury from a fan belt or an accident in riding a motorcycle, or a shotgun blast, and second whether Mr Simpson's theory of how a nitrous oxide bottle could explode was correct. Mr Roberts responded, so far as liability was concerned, on those two points.

The Trial Judge's Reasons Concerning Liability

52 The learned trial Judge summarised the evidence, and then continued:

“90. In assessing all of this evidence, I start firstly with the question of the defect and whether the nitrous oxide gas bottle in fact exploded.
91. I have considered carefully the evidence of both experts. Mr Griffiths, having supported his proposition that the bottle was not capable of explosion, amongst other things, on an assumption that no other compatible injury had occurred, conceded that this assumption had been incorrect.
92. I have taken account, particularly of the evidence that the nitrous oxide gas in the aluminium alloy bottle was under pressure. In such circumstances I do not accept that the bottle could not under any circumstances have exploded.
93. To my untrained scientific mind it appears that the situation would be not unlike circumstances of a balloon or a tyre on a motor vehicle when breached in circumstances of pressure. Although in those circumstances non-flammable gases are contained in containers of ductile material, they are known to explode. I have therefore accepted the opinion of Mr Simpson over that of Mr Griffiths.
94. The next question is whether I accept whether the plaintiff was in fact injured as a result of an explosion of a nitrous oxide bottle whilst he was attending to the Heritage motorcycle.
95. The plaintiff does not have a happy criminal history. He is a member of the Bandidos Motorcycle Club and it is evident from the police material before the Court that those club members adopt a culture of not assisting authorities when their assistance is called upon.
96. Unfortunately, that leaves the plaintiff in a situation of disadvantage when he is seeking to pursue legal rights. I have therefore again considered very carefully, not only the plaintiff’s evidence, but that of the other witnesses.
97. There was clear evidence of an explosion. The initial police report referred to a report of a gunshot or an explosion as a result of which a person had his hand blown away. There is evidence of the collateral injury suffered by the plaintiff which indicates that he was the subject of some kind of explosive force, rather than a gunshot wound.
98. The evidence of Mr Kenda who was present, although he did not see the precise moment of the explosion, was confident, straightforward and self assured. I was not persuaded that I should not accept his evidence. I have therefore on balance concluded that the plaintiff was in fact injured as a result of the explosion of a nitrous oxide bottle on a motorcycle to which his attention had been directed.
99. On the question of whether the defendant was the appropriate defendant, the defendant himself was an unhelpful and unimpressive witness. I have already noted his evidence concerning the reference to his brother-in-law, Mr Radovanovic, and I consider it highly unlikely that he, living in the same suburb of Sydney, does not know where his brother-in-law is and that he has not discussed this incident with him.
100. I also have serious doubts about his evidence that his driving record wrongly includes an offence for riding a motorcycle whilst unlicensed. I was unimpressed with the fact that Mr Radovanovic was not only not before the Court but that the plaintiff had not been told of his existence, although the defendant had known of this since December 2005.
101. From that I draw an inference that Mr Radovanovic’s evidence would not have assisted the defendant’s case.
102. Both Mr O’Sullivan and Mr Kenda described the Heritage motorcycle as distinctively customised and both insisted that it had not been misidentified. I have accepted their evidence and I find that the motorcycle in question was that which was registered to the defendant as at 30 July 2000.
103. Although not pursued in argument, it is clear that, as an accessory to the Heritage motorcycle, the method of fixing the nitrous oxide bottle to the cycle was defective and that thus the claim falls to be determined under the Motor Accidents Compensation Act 1999 .
104. I therefore find for the plaintiff on the issue of liability.”

The Liability Grounds of Appeal

53 Insofar as grounds of appeal had not been withdrawn at the time of the hearing, the grounds of appeal relating to liability were:

“3. Her Honour erred in failing to draw adverse inferences from the unexplained failure by the Respondent to call Mr John Fahey and Mr [Corey] Van Tongren, being persons whom he had nominated as being witnesses to the subject accident.
4. Her Honour erred in concluding that there was a causal relationship between the rattling sound that was heard and the explosion which injured the Respondent.
5. Her Honour erred:
(a) in concluding that the cause of the explosion which injured the Respondent was a sudden failure caused by a stress fracture resulting from the cylinder becoming embrittled or work hardened from repetitive contact between the exhaust pipe and the surface of the cylinder; and
(b) in failing to conclude that the cause of the explosion was not established by the evidence.
6. Her Honour erred by accepting the expert evidence of Mr Colin Simpson, Consulting Engineer, as to the explanation of the cause of the explosion, which injured the Respondent, in that Mr Simpson’s conclusions were not reasonable inferences to draw from the available evidence, as Mr Simpson had inadequate data to enable him to express the conclusions which Her Honour accepted.
7. Her Honour erred in failing to give adequate reasons for her holdings that:
(a) the Appellant was negligent, and
(b) such negligence caused the explosion which injured the Respondent.
8. Her Honour erred in concluding, if such matters were the basis of Her Honour’s reasoning, that there was negligence by either the rider or the Appellant as owner of the motorcycle in relation to:
(a) the manner of installation of the cylinder on the motorcycle;
(b) the facts of having the cylinder installed and thereafter remaining on the motorcycle;
(c) the development of a rattling sound or of the rattling which made the sound;
(d) the continuance of the rattling sound or of the rattling for any period of time;
(e) asking or permitting the Respondent to inspect and check the rattling sound, the cylinder or the motorcycle;
(f) the occurrence of the explosion which injured the Respondent.

54 Grounds of appeal that were raised in the notice of appeal, but not pressed, made allegations of error on her Honour’s part in identification of the correct defendant.

Ground 3

55 The plaintiff gave his own detailed account of how the accident had occurred. Mr Kenda also gave detailed evidence, on which he was not cross-examined, about the circumstances of the accident. That evidence included the circumstances immediately before the accident, and that, while Mr Kenda did not actually see the accident occurring, he heard the explosion. The trial judge was impressed by Mr Kenda’s evidence. The plaintiff's injuries, considered as a whole (para [50] above), were consistent with there having been an explosion of the type that the plaintiff described. Mr Simpson gave an explanation of how the rattling of the gas canister could result in its explosive failure. There was no lay oral evidence of any alternative cause of the plaintiff's injuries. All the evidence that I have mentioned so far in this paragraph told a consistent story.

56 While there was some documentary evidence that suggested alternative causes, the nature of that documentary evidence was such that it was not entitled to great weight – the hospital notes themselves expressed doubt about the "fan belt" explanation; the "fell off motorbike" explanation is unattributed hearsay; and the "shotgun blast" theory in the police notes is manifest hearsay, produced in circumstances where the Bandidos club members had refused to give the police any useful cooperation. There was no expert evidence to suggest any alternative cause.

57 As explained in Manly Council v Byrne and Anor [2004] NSWCA 123 at [45]–[67], two different processes for drawing inferences can (sometimes) arise from failure to call a witness. The first is that an inference can be drawn that the evidence of the absent witness, if called, would not have assisted the party who failed to call a witness. That is not the same as an inference that that witness, if called, would have been detrimental to the party who failed to call that witness. The second is that any inference that is already open on the evidence and is unfavourable to the party who failed to call a witness can be drawn with greater confidence, if that witness seems to be in a position to cast light on whether that inference should properly be drawn. However, there is no compulsion on a trial judge to engage in either of these processes for drawing inferences from the failure to call a witness. Further, the principle stated in Jones v Dunkel (1959) 101 CLR 298 does not require that all the witnesses to some particular incident that is in dispute should be called. The question for any trial judge, concerning a disputed matter of fact, is whether the trial judge concludes, from all the available evidence, on the balance of probabilities, that that fact is established. The principle in Jones v Dunkel is merely one of the tools through which conclusions on disputed matters of fact can be reached. In the circumstances of the present case, I see no error in the trial judge having failed to draw adverse inferences from the fact that the plaintiff did not call Mr van Tongren or Mr Fahey.

Ground 6

58 The opinion of Mr Simpson that her Honour accepted was to the effect that (a) a bottle, of the type used to contain nitrous oxide for use on motor cycles, was capable of exploding if the thickness of its walls was significantly compromised; (b) a rattling of the bottle, of the general type described by the plaintiff, was capable of compromising the thickness of the wall sufficiently for it to explode; and (c) the places where Mr Simpson was told the plaintiff had been injured were the sort of places one would expect fragments of the bottle to go in the course of an explosion. Those matters were well within Mr Simpson's expertise. In cross-examination Mr Griffiths accepted that if the bottle was not securely clamped, that could lead to premature wear of the bottle or some other component, and that the bottle should not be fixed in a position where it would be hitting against anything else, because that could potentially lead to some aging of the bottle in the part that is actually doing the direct striking. Her Honour made no error in accepting Mr Simpson’s opinion. I am not satisfied that ground 6 is made out.

The Other Grounds Relating to Liability

59 The reader will observe that there is a marked discrepancy between the terms in which grounds of appeal 4, 5, 7 and 8 are cast, and the terms in which the trial Judge's reasoning on liability is expressed. Those grounds of appeal proceed on an assumption that the trial judge’s judgment was one that considered whether the various elements of the tort of negligence – and in particular breach of duty of care, and damage suffered by the plaintiff in consequence of that breach of duty of care – had been made out. Her Honour’s judgment simply did not proceed in that way. Rather, her Honour’s judgment dealt with the particular factual matters about which both counsel had made submissions.

The Need to Establish Error

60 An appeal from the District Court to the Court of Appeal is an appeal by way of rehearing: section 127(1) District Court Act 1973; section 75A Supreme Court Act 1970; Fox v Percy (2003) 214 CLR 118 at [21], 125. On such an appeal, the Court of Appeal can intervene if " … making proper allowance for the advantages of the trial judge, they conclude that an error has been shown …": Fox v Percy (2003) 214 CLR 118 at [27], 127-128. Other authority that the task of the court on an appeal by way of rehearing is the correction of error is found in Allesch v Maunz (2000) 203 CLR 172 at [23], 180-181 and Branir Pty Ltd and others v Owston Nominees (No 2) Pty Ltd and another (2001) 117 FCR 424 at [21]-[25], 435–436.

Were the Issues at Trial Confined?

61 I shall consider at the outset an argument that, in the circumstances of the way the present trial was conducted, no error on the part of the trial judge has been demonstrated, because the topics about which the liability grounds of appeal, other than grounds 3 and 6, make complaint were not topics that her Honour needed to decide. The argument is set out in the following paragraph.

62 A party is bound, on appeal, by the way it conducts the trial: Gould and Birkbeck and Bacon v Mount Oxide MinesLtd (1916) 22 CLR 490 at 517-18; Saffron v Societe Miniere Cafrika (1954) 100 CLR 231 at 240; Dare v Pulham (1982) 148 CLR 658 at 664; Coulton v Holcombe (1986) 162 CLR 1. In the present case, even though factual issues including breach of duty and causation of damage were open on the pleadings, before the plaintiff's case was over, the trial judge asked counsel for the defendant what the issues were, and she received an answer the substance of which was that the issues were particular ones. The issues so identified were, admittedly, considerably narrower than the issues on the pleadings. The scope of issues on which counsel actually addressed submissions, and that her Honour actually decided, related to the issues that had been in that way outlined. When parties have conducted a trial on the basis that only certain matters are in dispute, it is not open to them on appeal to allege that the trial judge was in error for not having decided factual matters that were not at that time identified as being in dispute, or for not giving reasons for factual holdings that she was never asked to make.

63 I do not accept that argument. While it is undoubtedly correct that a party is bound on appeal by the way it conducts the trial, and the confining of issues at a trial can be responsible advocacy and a useful aid in efficient administration of justice, confining of issues needs to be clearly done. I do not accept that the limited scope of topics addressed by counsel in final address is of any great assistance in deciding whether the issues at the trial were confined. As Heydon JA (with whom Mason P and Handley JA agreed) said in Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn & Anor v Ashrafinia [2001] NSWCA 243; (2002) Aust Torts Reports ¶ 81-636 at [43]:

" … when final addresses took place the evidence had closed, and it would have been difficult for the case of either party to be reopened in the light of anything said in final address … it is usual, in examining the issues at a trial, to concentrate not on what was said in final address, but on what was said in the pleadings, in particulars, in opening addresses, and in the course of the reception of evidence."

64 I do not regard the exchange between the trial judge and Mr Kelleher that I have quoted at para [42] above as involving any clear election to confine the matters in issue to those that Mr Kelleher identified, so that the issues raised by the pleadings became irrelevant. It occurred at a stage in the unfolding of the plaintiff's evidence when all the plaintiff’s lay witnesses about the circumstances of the accident had been called, and the only witnesses remaining to be called by the plaintiff's counsel were Mr Kennedy and Mr Simpson. The exchange arose from an impromptu question on the part of the judge. The terms of the exchange itself – particularly when Mr Kelleher's attention was distracted in the midst of his answer – do not make it clear that Mr Kelleher was purporting to give an exhaustive list of all the issues that there were.

65 No event at the trial, apart from the exchange quoted at para [42] above and the final addresses, could have confined the issues. Thus, the issues on the pleadings remained open.

Is it Open to the Appellant to Argue “No Negligence” on the Appeal?

66 It can be error on the part of a trial judge to give a verdict for a plaintiff without deciding those issues that remained live at the trial which need to be decided in the plaintiff's favour to establish the cause of action on which the plaintiff sues. Further, if the evidence before the trial judge does not establish that the defendant is liable on that course of action, such an error can result, on appeal, in a verdict for the defendant.

67 However, there are significant restrictions on a litigant taking, on appeal, a point that was not taken below, if (a) that point is one that could have been cured by evidence at the trial or (b) evidence could possibly have been called which would otherwise have been relevant to that point, or (c) had the point been raised below, the respondent might have conducted the case differently at trial: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 437-8; Tipper v Williams (No 1) (NSWCA, unreported, 12 May 1993) at 8-9; Ashrafi at [51]; Hypec v Mead [2004] NSWCA 221 at [71]-[73].

68 Notwithstanding that, as Heydon JA said in Ashrafi at [51], concerning an argument sought to be raised on appeal that the evidence did not establish a duty of care:

" … these principles do not apply, because the defendant has not raised a new "point". Rather it is contending that the case pleaded and proved by the plaintiff at trial does not establish a relevant duty of care. Instead of the defendant raising a "point", it is contending that there is an inadequacy in the plaintiff's handling of the point raised in the first instance by the plaintiff herself."

The situation is the same concerning any argument raised on appeal that the evidence did not establish some necessary element or elements of the plaintiff’s cause of action.

69 Allowing such a point to be taken on appeal is consistent with the practice that existed in New South Wales before the enactment of the Supreme Court Act 1970 whereby, on appeal to the Full Court after a jury trial in a civil action, it was open to the Full Court to enter a verdict for the defendant on the ground that there was no case to answer, even if no submission that there was no case to answer had been put in the court below: Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 372 per Dixon CJ, 377 per McTiernan, Fullagar, Kitto and Taylor JJ. The basis on which that could be done is explained by Dixon CJ in Hampton Court at 372:

“At common law the Court in banc could not enter a verdict unless power to do so was reserved at the trial. Such a reservation was based upon a convention, although a traditional convention: see Edmond Weil Inc v Russell (1936) 56 CLR 34, at p 46 and the authorities there cited. The statutory power conferred upon the Supreme Court by s. 7 of the Supreme Court Procedure Act 1900 takes the place of this practice. It is an independent power residing in the Full Court and is intended to avoid the necessity of a new trial existing at common law if no reservation had been made.”

70 McTiernan, Fullagar, Kitto and Taylor JJ at 377 likewise identified the source of this power as being section 7 of the Supreme Court ProcedureAct 1900. That section provided:

“in any action, if the Court in Banco is of opinion that the plaintiff should have been nonsuited, or that upon the evidence the plaintiff or the defendant is as a matter of law entitled to a verdict in the action or upon any issue therein, the Court may order a non-suit or such verdict to be entered."

71 That power was also explained by Dixon CJ, delivering the judgment of the High Court, in Williams v Smith (1960) 103 CLR 539 at 542:

“In New South Wales the jurisdiction to enter a verdict contrary to that of a jury is not exactly the same as it is in the States where the Judicature Act prevails. As long ago as 1931 I stated what I conceived to be the position in this State, in a passage I shall read from Shepherd v Felt and Textiles of Australia Ltd. (1931) 45 CLR 359 : " Without statutory authority the Court could not enter a verdict in lieu of that set aside, unless empowered to do so by a reservation made at the trial with the consent of the parties actual or implied. ... The statutory power of the Supreme Court of New South Wales to enter a verdict is much less extensive than that conferred upon the Court of Appeal in England by Order LVIII, r. 4, and is confined by the terms of s. 7 of the Supreme Court Procedure Act 1900 to cases in which upon the evidence the party is, as a matter of law, entitled to a verdict. Such a case arises when a party upon whom the burden lies of proving an issue fails to adduce evidence sufficient to discharge the onus. For the insufficiency of evidence to support an issue is a matter of law, upon which the Court must direct the jury. …” (1931) 45 CLR 359 at pp. 379, 380”

72 To similar effect is the judgment of Williams J in Huddart Parker Limited v Cotter (1942) 66 CLR 624 at 660:

“ … the powers of the Full Court of New South Wales under sec. 7 of the Supreme Court Procedure Act 1900 are more limited than the powers of the Full Courts of those States which have adopted the judicature system. Under this section the Court can only set aside a verdict for the plaintiff on whom the onus lies and enter a verdict for the defendant upon an issue of fact, where it is satisfied that as a matter of law there was no evidence on which the jury as reasonable men could find for the plaintiff ( Shepherd v Felt and Textiles of Australia Ltd , at p. 391). Where the jury has found a verdict in favour of the plaintiff on whom the onus lies the Court cannot on appeal under this section set aside the verdict and enter judgment for the defendant on the ground that, the whole of the available evidence being before the Court, it preponderates in favour of the defendant to such an extent that any jury acting reasonably could only come to the one conclusion. To do so would be to decide a question of fact and not of law.”

73 While the Court of Appeal, now, decides appeals on matters of both fact and law, its powers still extend to correcting error of the type involved where a verdict for the plaintiff is given when there is not evidence that could convince a reasonable decider of fact of each element of the cause of action. I turn to consider whether the present is such a case.

Was Negligence Made Out?

74 The allegations that were made in the Statement of Claim were consistent only with alleging that it was the defendant who was Bluey. The trial judge recorded:

“35. The plaintiff was present in court whilst the defendant gave his evidence, but was not called to identify him as the person he knew as Bluey.
36. The defendant was not present at court on 17 March 2006 when Mr O’Sullivan and Mr Kenda gave evidence. This was of particular significance in the case of Mr Kenda, who stated that he had a measure of acquaintance with Bluey. Mr Radovanovic did not give evidence.”

However, she did not make any finding about who Bluey was, or about what connection he had with the defendant.

75 Failure to make those findings might in some circumstances have created difficulties in upholding the judgment. However that is not so on the present appeal. The trial took place against an assumed statutory background arising from the MAC Act 1999. Under the definitions in section 3 of that Act,

“driver … includes:
(a) a person riding and operating a motorcycle,
…
Injury
(a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during:
…
(iv) such use or operation by a defect in the vehicle
Fault means negligence or any other tort.”

76 Section 4(1)(a) contains an extended definition of the "owner" of a registered motor vehicle, as being:

“(i) each registered operator of the vehicle within the meaning of the Road Transport (Vehicle Registration) Act 1997 , unless the operator has sold or ceased to have possession of the vehicle, and
(ii) each person who, although not a registered operator of the vehicle, is a sole or joint owner of the vehicle, unless that person has sold or ceased to have possession of the vehicle, and
(iii) if any such registered operator or owner has sold or ceased to have possession of the vehicle—any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle.”

77 Section 112(1) of the MAC Act contains a statutory presumption of agency, whereby,

“(1) For the purposes of:
(a) any proceedings against the owner of a motor vehicle, whether severally or jointly with the driver of the vehicle, for the recovery of damages for liability in respect of the death of or injury to a person caused by the fault of the driver of the vehicle in the use or operation of the vehicle, and
(b) the third-party policy, if the vehicle concerned is an insured motor vehicle,
any person (other than the owner) who was, at the time of the occurrence out of which the proceedings arose, the driver of the vehicle (whether with or without the authority of the owner) is taken to be the agent of the owner acting within the scope of the agent’s authority in relation to the vehicle.”

78 At the appeal, Mr Gross QC, counsel for the appellant, accepted that:

“… for all relevant purposes we can treat the brother-in-law Ziggy Radovanovic as also the owner of the vehicle. In any event, having possession of the motorcycle is at least the statutory agent of the named defendant so we make it quite clear we’re not taking any points about not having Mr Radovanovic in as a defendant or not amending the pleadings so as to plead agency or anything like that.”

79 Acceptance that Mr Radovanovic was the person with possession of the motorcycle would justify the small extra step that it is likely to have been Mr Radovanovic who was known as Bluey.

80 Another finding that her Honour did not make was whether she accepted all the evidence that the plaintiff gave. In that situation, I shall approach the question of negligence by inquiring whether, if the evidence the plaintiff gave were all to be accepted, a finding of negligence would be made out.

81 The Particulars of Negligence that the plaintiff alleged were:

“(a) Fitting or allowing to be fitted and/or allowing to remain fitted to the motorcycle the nitrous oxide system;
(b) Allowing the nitrous oxide system to remain fitted to the motorcycle when it was defective and therefore dangerous;
(c) Failing to adequately or at all remove from the motorcycle or at least repair the nitrous oxide system;
(d) Operating or allowing the motorcycle to be operated whilst the defective and dangerous nitrous oxide system was fitted;
(e) Allowing the Plaintiff to go near the operating motorcycle when the Defendant knew or should have known that it was dangerous to do so;
(f) Failing to warn the Plaintiff of the risk of injury of going near and/or touching the motorcycle whilst it was clearly dangerous;
(g) Failing to ensure his motorcycle engine was not connected to the nitrous oxide system;
(h) The Plaintiff relies upon the principles of res ipsa loquitur.”

82 There was no evidence that could support a case that the nitrous oxide system was an inherently unsafe thing, such as should never be fitted, by a person taking reasonable care, to a motorcycle. (Even though Mr Griffiths’ report had pointed out a provision of the Light Vehicle Code of Practice whereby use or fitment of nitrous oxide systems was not permitted, Mr Simpson’s report pointed out another provision whereby such systems could be fitted to a road registered vehicle if they were physically disabled during the period that the vehicle was on a public road. Inherent unsafety of nitrous oxide systems was simply not an issue at the trial.) Nor were any submissions addressed, either at the trial or on appeal, to the principle of res ipsa loquitur.

83 There was evidence that the plaintiff noticed the rattling sound in the course of the ride from North Rocks to Manly. It is implicit in that evidence that the rattling was loud enough to be heard above the engine noise of however many Harley Davidson motor bikes were used to transport the 20 or so people who rode to Manly that day. There is no evidence concerning at what stage in the journey the plaintiff heard the rattling sound, of how long the journey took, or of how long before the end of that journey the plaintiff first heard the rattling sound.

84 After the plaintiff gave his evidence about the group returning to North Rocks after the bike show, his evidence-in-chief was:

“Q. Did the same group that you went with go back to Richard Close Place, or just some of them or all of them?
A. All of them.”

85 He gave no evidence, however, of having heard any rattling noise from Bluey’s bike on the return journey. The only other evidence from the plaintiff of the rattling noise was that the plaintiff heard it, as he was waiting to be taken home from the clubhouse, when Bluey rode the motorcycle up to where the plaintiff was. The plaintiff’s evidence continued:

“Q. What happened?
A. I walked over. The bloke was looking at it. He had it there. And I can’t remember whether he asked me to have a look or not, or whether I said, ‘Hey, it’s making a noise, I’ll have a look’.”

86 That evidence is consistent with the evidence of Mr Kenda that, shortly before the explosion occurred, he saw Bluey near his motorcycle, and saw him looking down to the right of his bike, “and there appeared to be something wrong to his bike – with his bike”, and that he heard a rattling noise.

87 Thus, Bluey’s knowledge that the rattling was taking place is shown by direct evidence to have existed over only a short period of time, on a single day and night.

88 Even though the only evidence that the plaintiff presented at the trial was of the rattling of the bottle having occurred during a comparatively short time, on only one day and night, the trial judge would have been justified in concluding that it was the explosion of the bottle that caused the plaintiff’s injuries. The only plausible explanation of the bottle exploding, on the evidence, was that its integrity had been sufficiently weakened for it to explode. No other cause of its integrity being weakened presents itself on the evidence, other than its rattling in its mounting. In those circumstances, an inference is open that that it had been rattling for long enough to compromise its structural integrity. That might possibly be longer than the period of time about which the plaintiff gives evidence of rattling, but the evidence does not enable one to say how much longer, if any longer at all.

89 The rattling was of a type that could hardly escape notice. Thus, an inference is also open that the rider of the bike knew about the rattling for however long it had been going on. When Mr Radovanovic is the person who is accepted as having had the care of the motorcycle, he is the person who would have been in a position to give evidence to negative those inferences. When the defendant did not call him, the inferences can be drawn more strongly.

90 There are several types of action, on the part of Bluey, that could have prevented the injury to the plaintiff. One of them is for Bluey to have stopped riding the bike sooner than he did, and not to ride it again until the cause of the rattling was identified and the problem fixed. Another was for him to have warned the plaintiff not to approach the bike, or not permitted him to approach the bike. Whether a reasonable person in his position ought have taken any of these courses of action depends upon whether the reasonable person should have appreciated that continuing riding could risk some sort of injury because of the rattling having occurred, or that there was a risk that the bike had got itself into such a condition that there was a risk of injury to someone who approached it or sought to examine the nitrous oxide system.

91 In my view, reasonable members of the community without any particular scientific training can be expected to understand that there is potential serious danger in puncturing any container that holds gas under pressure – ordinary household aerosol cans usually bear a warning against puncturing or incinerating. The evidence does not establish whether the bottle fitted to the defendant’s bike was, in appearance and feel, more akin to an aerosol can or to a more substantial vessel like a container for barbeque gas, but even so the general proposition that puncturing a container that holds gas under pressure can be dangerous, is something that a person seeking to take reasonable care should bear in mind.

92 Further, the risk presented by the explosion of a bottle containing gas under pressure is a serious one, even if the gas is itself not flammable. As Lord Wright said it Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1936] AC 108 at 126, concerning the risk of damage from natural gas escaping from a main:

“The degree of care which that duty involves must be proportioned to the degree of risk if the duty should not be fulfilled.”

93 The material from which the container involved in the present case was made is in fact not as strong as steel, but there is no evidence that that fact would have been apparent to, or ought reasonably have been suspected by, a person taking reasonable care in the use of the container. The comparative weakness of the material from which the container was made was an important part of Mr Simpson’s explanation of how the bottle came to explode.

94 The manufacturer’s brochure, containing the warnings about which Mr Simpson gave evidence, is not shown to be a brochure that was current at the time of the accident, or at whatever time it might have been that the particular nitrous oxide system that was fitted to the defendant’s bike was manufactured or sold. There was no evidence of any practice whereby a nitrous oxide system would ordinarily be sold to the first retail purchaser with a manufacturer's brochure (whether the brochure Mr Simpson downloaded or some other one). The certificate of registration of the defendant’s motorcycle established that it was a 1989 model, and there was no evidence that established whether the nitrous oxide system had been fitted to the bike when the bike was new, or at some later time. In these circumstances, there was insufficient evidence to conclude that the warning in the brochure that Mr Simpson obtained is something that should have been borne in mind by Bluey in July 2000.

95 In the present case, I do not see any basis for a reasonable person realising that the type of rattling that the plaintiff's evidence described could produce the same effect as a puncturing of the bottle.

96 While one can infer, from the fact that Bluey asked or permitted the plaintiff to investigate the cause of the rattling, that he recognised the rattling as some sort of a problem, that is quite different to him being in a situation where he ought to have recognised a potential danger, against which he ought to have warned the plaintiff.

97 In these circumstances, it would not have been open to the trial judge, even if she had accepted the evidence of the plaintiff concerning which she made no explicit findings, to conclude that negligence on the part of either the defendant personally, or anyone for whom the defendant was responsible, had caused the injury to the plaintiff. Thus, the appeal should be allowed.

Costs

98 The appeal has been occasioned by the failure of the appellant to take below the point on which it has succeeded in this court. In those circumstances, the appellant should not receive his costs of the appeal.

99 What should be done about the costs of the trial is problematic. A significant part of the reason why the real issues in the case were not focused on at the trial was because of the plaintiff’s pleading the existence of a "defect", and the solicitor purporting to act on behalf of the defendant filing a defence aimed at establishing that the defendant’s insurance policy would not respond, even if the defendant himself was liable. How it came about that the defendant’s solicitor took the prima facie extraordinary step of filing a defence the objective of which was to subvert his own client's right to indemnity under the policy has not been gone into before us. We are left with the bald fact that both parties have, by their pleadings, contributed to the real issues not having been focused on. In that situation, it seems to me that the appropriate order is for the costs of the trial to follow the event.

Orders

100 I propose the following orders:

1. Appeal allowed.

2. Set aside the judgment in the plaintiff's favour in proceedings No 72 of 2004 in the District Court at Wagga Wagga, and in lieu thereof enter a judgment for the defendant.

3. Each party to bear its own costs of the appeal.

4. Plaintiff to pay the defendant's costs of the District Court proceedings.

5. Grant to the plaintiff a certificate under the Suitors Fund Act 1951 in respect of the appeal.

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