Nominal Defendant v Genn

[2004] NSWCA 306

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Nominal Defendant v Genn [2004]  NSWCA 306

FILE NUMBER(S):
40941/03

HEARING DATE(S):               24/08/04

JUDGMENT DATE: 01/09/2004

PARTIES:
Nominal Defendant (A)
Stephen Richard Genn (R)

JUDGMENT OF:       McColl JA Young CJ in Eq Kirby J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          6108/99

LOWER COURT JUDICIAL OFFICER:     Gamble ADCJ

COUNSEL:
G M Watson SC and P D Ryan (A)
M J Neil QC and J A Jobson (R)

SOLICITORS:
Henry Davis York (A)
Milicevic Solicitors (R)

CATCHWORDS:
TORTS- Negligence- Res ipsa loquitur type inferences- Action against Nominal Defendant- Whether inference might be drawn that piece of metal on road fell from unidentified motor vehicle as a result of the fault of the operator.

LEGISLATION CITED:
Motor Accidents Act 1988, s 28

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

40941/03

McCOLL JA
YOUNG CJ in EQ
KIRBY J

Wednesday 1 September 2004

NOMINAL DEFENDANT v GENN

Judgment

1. McCOLL JA:      I agree with Young CJ in Eq.

2. YOUNG CJ in EQ:  This is an appeal from a decision of her Honour Acting Judge Gamble of the District Court in which her Honour determined that the present respondent as plaintiff should recover substantial damages from the present appellant in respect of a motor vehicle accident which occurred on 19 August 1996.

3. On the hearing of the appeal, Mr Geoffrey Watson SC and Mr P D Ryan appeared for the appellant, and Mr M J Neil QC and Mr J A Jobson appeared for the respondent.

4. The learned judge said that the accident occurred at about 2pm on that day when the respondent was driving his employer’s Ford motor vehicle south along the New England Highway Kankool near Willowtree.  The conditions were wet, the road was icy, but the traffic, including the respondent’s vehicle were driving in the dry tyre tracks of preceding vehicles.  The respondent was travelling at about 80-90 kph.

5. The judge found that as the respondent rounded a sweeping bend of the road to the right to cross a wide creek, he noticed a piece of metal lying in his lane approximately three feet from the centre line.  The respondent reckoned he was only 20-30 metres from the metal when he first espied it. He described it as an “I” section about 15 inches long.  He said it was hollow about two inches by one inch.  It was coated with red metal primer.  It was lying at about 30 degrees to the respondent’s line of approach and located at the point where the road begins its curve.

6. The judge accepted that as soon as he saw the metal, the respondent began to take evasive action.  It is not necessary to describe in detail what he did, but the evasive action included swerving.  The respondent felt a loud bang at the back, he found his car would not respond to his steering, he went sideways across the road into oncoming traffic.  He crashed into…