Chen v Caldieraro

Judgment Introduction 1Xiao Chun Chen, the plaintiff suffered severe spinal injuries on 10 August 2009, when he was trapped under a Toyota Hilux 2 wheel drive motor vehicle ('the utility) on a farm at Boambee, near Coffs Harbour ('the farm'). The utility was not registered or insured. He is presently 27 years of age and is a paraplegic. 2At the time of the accident, the plaintiff was 24 years old. He was born in China on 5 February 1985 and had come to Australia in August 2008 to study Horticulture at the Coffs Harbour TAFE. Matteo Caldieraro ('the first defendant') was the owner of the farm, upon which he grew tomatoes, cucumbers, avacados and bananas. 3The first defendant purchased the utility in about 2004. It was registered until 17 July 2007, but he did not renew the registration after that time and its use was confined to work on the farm. The utility was a manual vehicle. 4At the core of this case is the plaintiff's claim that the utility had a defective handbrake, footbrake and tyres whereas both the first defendant and the Nominal Defendant assert that the accident occurred as the plaintiff did not apply the utility's handbrake before alighting from it. It is the defendants' case that as a result, the utility rolled back onto the plaintiff, carrying him down a slope from a gravel track to a level area several metres below. Another core issue is whether the accident occurred "on a road" within the statutory meaning in the Motor Accidents Compensation Act 1999 (the MAC Act). 5Agreement has been reached as to the plaintiff's entitlement to non-economic loss under the MAC Act and the Civil Liability Act 2002 (the CLA) at 90 per cent of a most extreme case. Those amounts are $415,800 (MAC Act) and $481,500 (CLA). The sum of $256,900 has been agreed as to the plaintiff's past and future loss of earnings, which is subject to his admission into the Lifetime Care and Support Scheme. The Lifetime Care and Support Authority of NSW has advised that the Authority will concur "with any decision made by the court as to whether [the plaintiff's] accident occurred on a public road or otherwise" (ex ND 6). 6The CLA does not apply to the plaintiff's claim against the first defendant as owner of the utility and against the Nominal Defendant as the MAC Act governs these actions. 7Section 3A(1) MAC Act is relevantly as follows: "General restrictions on application of Act (1)This Act...applies only in respect of the ...injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the ...injury is a result of and is caused (whether or not as the result of a defect in the vehicle) during: ... (c)the vehicle's running out of control." 8"Fault" is defined in s 3 MAC Act as "negligence or any other tort." 9The Nominal Defendant accepts that the plaintiff's injury occurred "in the use or operation of" the utility and the injury was a result of and was caused during the utility's "running out of control." The plaintiff must establish that his injury was caused by the negligence of the first defendant. 10Questions of breach of duty, causation and damages that arise in the plaintiff's claim against the first defendant as occupier of the farm are governed by the CLA: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [27]. Section 5B CLA provides: "(1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 11Section 5D CLA is as follows: "(1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party." 12 The onus of proof is on the plaintiff on the balance of probabilities. 13The plaintiff was represented by Mr D Baran, the first defendant by Mr J Guihot and the second defendant by Mr K Rewell SC with Mr B Kelleher. The Pleadings 14The plaintiff's claim against the first defendant is pleaded in negligence. The plaintiff pleads that the first defendant as owner of the utility owed to him a duty of care "as a driver of it to provide him with a vehicle that was free of defects and take reasonable care to ensure that the vehicle was capable of being driven without exposing the plaintiff to a foreseeable risk of injury": Amended Statement of Claim (ASC) par 18. 15In addition or in the alternative, the plaintiff pleads that the first defendant as occupier of the farm and as a licensor or landlord owed to him "a duty of care as part of the provision of the motor vehicle in its use on the farm both for the benefit of the plaintiff and also for the first defendant to take reasonable care to ensure that the said motor vehicle was not defective and capable of being driven and to further take such reasonable care so as to avoid the plaintiff sustaining foreseeable injury": ASC par 19. 16The plaintiff pleads that the first defendant in breach of the duty of care owed to him "failed to make necessary repairs to defects in the said vehicle or otherwise ensure that it was in a reasonable state of repair such that it could be driven around the farm which caused the plaintiff to suffer catastrophic injury...": ASC par 20. 17The plaintiff claims that "the motor vehicle accident occurred on a road within the meaning of the Road Transport (Vehicle Registration) Act 1997 being an area that was open or used by the public and was developed for or has one of its main uses as being the driving or riding of motor vehicles": ASC par 22. As the utility was unregistered and uninsured for the purpose of the MAC Act, the plaintiff claims that the Nominal Defendant is liable to him. 18The particulars of negligence alleged against the first and second defendant are as follows: "(i)Failing to register the vehicle. (ii)Failing to insure the vehicle. (iii)Providing a vehicle to the plaintiff which was inherently defective. (iv)Providing a vehicle to the plaintiff which had defective brakes. (v)Providing a vehicle to the plaintiff which had a defective handbrake. (vi) Providing a vehicle to the plaintiff which had defective tyres. (vii)Failing to take any reasonable steps whatsoever to repair the vehicle when it had broken down in the past. (viii) Failing to make any repairs on the vehicle by using the services of a qualified mechanic. (ix)Failing to replace the vehicle. (x)Negligently permitting the plaintiff to drive the said vehicle when the defendant knew or ought to have known it posed a risk of injury to the plaintiff due to its defects. (xi)Failing to ensure as part of his contractual obligations to the plaintiff that the defendant provided to the plaintiff safe equipment, namely the motor vehicle. (xiii)Failing to dispose of the vehicle when it was clear to the first defendant well prior to the accident that the vehicle suffered from significant defects and would cause a person such as the plaintiff to sustain foreseeable injury. (xiii)Res ipsa loquitur." 19I observe that it is no part of the plaintiff's claim that the first defendant was negligent in providing him with instructions or directions. 20The first defendant denies that he was the "owner" of the utility within s 4 MAC Act, but asserts that the plaintiff was. He claims that the utility was not required to be registered or insured as it was only to be used on a private farm and not on any "road" within the meaning of the Road Transport (Vehicle Registration) Act. The first defendant denies that he owed the plaintiff a duty of care or that he was in breach of duty. He denies that he was negligent at all and that the accident occurred on a "road" within the meaning of the Road Transport (Vehicle Registration) Act. 21The Nominal Defendant denies that the utility was defective, and that the accident was caused by the "fault" of the first defendant should he be found to be the owner of the utility. The Nominal Defendant denies that the accident occurred on a road within the meaning of the MAC Act and or the Road Transport (Vehicle Registration) Act. 22Both defendants assert that the plaintiff's injury was caused wholly by his own negligence, in failing to apply the handbrake in the utility before alighting from it. They also plead contributory negligence. 23By a cross-claim, the Nominal Defendant claims from the first defendant pursuant to s 39 MAC Act, any amounts payable to the plaintiff under s 33 MAC Act. 24The first defendant accepts that he owed the plaintiff a duty of care to provide a motor vehicle that was not defective in the manner particularised in the ASC. A review of the evidence 25Fundamental to the success of the plaintiff's action is the existence of a defect in the utility at the time of the accident. In closing submissions, Mr Baran submitted that the plaintiff was an honest and truthful witness. Mr Baran put to me that the plaintiff had made a number of concessions in cross-examination which included his acceptance that the vehicle was probably in neutral, but what he did say was the handbrake was on. Mr Baran vigorously attacked the credibility of the first defendant describing him to be a witness who was evasive, unreliable and in various parts of his evidence plainly dishonest. He submitted that the first defendant's version of events was entirely unbelievable and should be rejected. Mr Guihot contended that the plaintiff's evidence was vague and inconsistent and in any factual matters of difference, the court would prefer the evidence of the first defendant and the witnesses called on behalf of the defendants. Mr Rewell, in particular, submitted that the plaintiff's evidence as to engaging the handbrake of the utility should not be accepted. 26As much depends upon my assessment of the honesty and reliability of the evidence of the plaintiff and the first defendant, it is necessary to review the evidence in some detail. 27On 24 April 2009, the plaintiff entered into an agreement with the first defendant to use two hothouses on the farm. They both signed a document ('the license agreement') that is in the following terms: "I Matteo Goldieroro am the owner of the property as [sic] 844 Englands Road Coffs Harbour which has 4 greenhouses. Two of them will be leased out to Xiaochun, Chen for 12 months from 1st May 2009 to 30 April 2010 to grow vegetables in two tunnel Greenhouses. The lease agreement is 160AUS dollor (sic) per week direct deposit into my account before the crop starts to be harvest. Once the crop starts to harvest the amount will be 200 AUS dollor (sic) per week included in the lease will be all the running gear for the business to run if any damage (except nature damage) is done to the greenhouses it has to be fixed or replaced. Power and water is included." 28The "running gear" included the utility. 29Shortly after the license agreement was signed, the plaintiff commenced growing cucumbers in the two hothouses under the name of Chen's Veggies. There was some suggestion in his evidentiary statement (ex C) and oral evidence that he did some work for the first defendant after entering into the license agreement, but the plaintiff agreed in cross-examination that after the license agreement, what he did on the farm was confined to the growing of his cucumber crop: T 31 45-50. When asked by Mr Guihot how regularly he used the utility, the plaintiff responded (T 31. 5): "Maybe two times a week or three times a week." 30The plaintiff said that he had the right to use the utility if the first defendant was not using it, but agreed that it was always the case that if he wanted to use the vehicle for moving something around at the farm for his business, he had the right to use it. He had used the utility to transport cucumbers from the hothouses to the packing shed. The plaintiff said that he paid for petrol only once when Mr Caldieraro had asked him to fill the vehicle up. 31On the topic of his use of the utility, the plaintiff gave the following evidence in cross-examination by Mr Rewell (T64. 45-50; T65. 1-31 29/10/12): "Q. You had driven that vehicle at least two or three times a week for at least three months, hadn't you? A. WITNESS: Yes. Q. You had applied the foot brake many times? A. WITNESS: Yes. Q. You had applied the handbrake many times? A. WITNESS: Yes. Q. And you never noticed a problem with either, had you? A. WITNESS: Not in my memory, no. Q. Because if you noticed a problem you would have told Mr Caldieraro about it, wouldn't you? A. WITNESS: Not really, if I can handle it I just handle it. Plus I only use the car for short minutes. Q. But you drove the car several times a week about the property, didn't you? A. WITNESS: Only like half an hour and from here to there, so Q. Did you drive outside the property sometimes as well in the utility? A. WITNESS: I drove from his place to my home. It is just beside the road, and then Matt told me it is not allowed to drive that car, so I didn't drive after that. Q. Otherwise you just drove it within the property? A. WITNESS: Sorry? Q. You just drove it within the property? A. WITNESS: Yeah, most of it. Q. But you drove it altogether dozens and dozens of times, didn't you? A. WITNESS: Yes I drove it a few times. Q. And you didn't notice any problem with either the foot brake or the handbrake, did you? A. WITNESS: No." 32The plaintiff testified that he noticed that the tyres on the utility were not new, "like there was no treads on the tyres, just like older tyres": T 15. 33-34. The track on all four tyres were like those on his wheelchair to which he pointed. The plaintiff was understood by me to mean that the tyres on the vehicle were "smooth" or "bald" and lacked tread. 33Mr Rewell showed the top photograph on the second last page of the group of photographs (ex B) that were taken on the day of the accident to the plaintiff, who agreed that he could see deep tread on the driver's side front tyre of the utility, but when it was suggested that all the tyres were the same he replied that he did not know. Mr Rewell then drew his attention to the top photograph on the last page of the exhibit and the plaintiff agreed that he could clearly see the tread on the front tyres. 34Mr Caldieraro's evidentiary statement is ex 1 D1. He recounted that before the license agreement was signed, he said to the plaintiff words to the following effect: (ex 1 D1 par 17): "Chen all the gear is there for you to use, it is in good working condition. It is up to you to look after it and keep it in good repair and if anything goes wrong you have to fix it. The ute's in good condition, its got nearly new tyres on it, they were put on more than twelve months ago but as you can see they have done very little work." 35When cross-examined upon this conversation, the plaintiff said that he did not remember it. 36Mr Caldieraro stated that between May 2009 and August 2009, he observed the plaintiff driving the utility at least 3 or 4 times a week. The plaintiff used the vehicle to transport sawdust to be used in the potting of his plants from the area in front of the packing shed to the hothouses and to cart his cucumbers from the hothouses to the packing shed. Mr Caldieraro stated that the plaintiff never made any complaint to him about the utility. 37During his oral testimony, Mr Caldieraro recalled that he had driven the utility "maybe weeks" before the plaintiff came onto the farm to grow his cucumbers. He did not ever have difficulty with the handbrake or the footbrakes, nor had the vehicle rolled backwards or moved forwards whilst the handbrake was applied. 38Mr Calderaro had purchased four new tyres on 7 July 2006 that were fitted to the utility before the vehicle was registered on 10 July 2006. These tyres were on the utility at the time of the accident. Mr Caldieraro explained that he purchased a new Hilux 2 wheel drive utility in 2007 and after this time rarely used the utility. During his oral evidence, he said that he was not sure how many kilometres the vehicle might have travelled from time of purchase of the tyres, "but it wasn't many": T 112. 34 39Mr Caldieraro said that after the plaintiff came to the farm to grow his cucumbers, he drove the utility with the plaintiff's permission as it was part of "the lease agreement" that the plaintiff had the vehicle. He had driven the vehicle "maybe once a week or once every few weeks" but very rarely used it: T 114 18-19. If for any reason, he wanted the vehicle and the plaintiff was not there, he agreed that he might use it. The accident 40In his evidentiary statement, the plaintiff stated that on 10 August 2009, he was expecting supplies of sawdust. Mr Caldieraro asked him to move the utility up the hill so that there would be room for the truck to deliver the sawdust. He was asked by Mr Caldieraro to park the utility so that it was parallel to the lower road and facing the main road which led into the property. Following his instructions, the plaintiff drove the utility up, what he referred to as the 'higher road' and attempted to make a 'U-turn' to position the utility where he had been asked to park it. 41The plaintiff recounted that in doing so, he was unable to turn the vehicle as the wheels started spinning and were not gripping the road due to lack of tread on the tyres. The plaintiff explained that he was left with no option other than to park the utility on the upper road with the rear of the vehicle facing the embankment. He exited the vehicle, was standing near it and started talking to Mr Caldieraro. The plaintiff said that he asked the first defendant to park the utility himself as the vehicle had stalled. 42It was the plaintiff's account that as he was talking, Mr Caldieraro yelled out to him that the utility was rolling down the embankment and asked him to get into the vehicle and apply the brakes. The plaintiff said that he followed the first defendant's directions, attempting to apply the brakes, but in doing so lost his footing as the door of the utility hit him. He fell to the ground and was caught under the vehicle which rolled over him. 43In cross-examination by Mr Guihot, the plaintiff said that he did not recall Mr Caldieraro approaching the vehicle until he had stepped out of it. The plaintiff testified that before he got out he did not put the vehicle in any other gear than the first gear that it had been in. When cross-examined on this topic, the plaintiff's evidence was as follows (T 37. 16-50; T 38 1-15): "Q. Are you sure? A. WITNESS: Not in my memory I changed the gear, no. Q. If I suggested to you that you in fact placed the vehicle in neutral, would you agree with that? A. WITNESS: I can't remember that. Q. Do you remember at any stage telling your solicitors that you placed the vehicle in neutral before you got out of the vehicle? A. WITNESS: I normally put on the neutral but I don't remember that time. Q. If I suggested to you that at some stage prior to 21 October 2010 you told your solicitors, amongst other things, that you put the vehicle in neutral and got out of the car, do you agree that that is what you told your solicitors? A. WITNESS: Yes. Q. And that was based on an actual recollection that you had about putting the gear in neutral when you told that to your solicitors, is that the case? A. WITNESS: Yes. Q. The engine of the vehicle went off? A. WITNESS: Yes. Q. Did you turn it off or did something happen? A. WITNESS: I turned it off. Q. Did you turn it off before changing gear or did you change gear after you had turned off the engine of the vehicle? A. WITNESS: Can't remember. Q. And by turning the engine off, you turned the key in the ignition to turn the motor off; that's right? A. WITNESS: Yeah, yes. Q. I want to suggest to you that having turned the engine off and then having placed the gear in neutral, you then got out of the vehicle? A. WITNESS: Sorry, could I ask my Q. Certainly? A. WITNESS: I don't remember which gear I put, but I put the handbrake on and then I get out of the car. Q. I want to suggest to you that what happened was this: You turned the motor off? A. WITNESS: Yes. Q. You put the gear into neutral from its position in first gear and then got out of the vehicle without putting the handbrake on? A. WITNESS: I don't remember the gear but I certainly put the handbrake on." 44The plaintiff's attention was drawn by Mr Rewell to questions he had been asked by Mr O'Brien from the Department of Immigration about the accident. Mr Rewell put to him that he had said to Mr O'Brien (T67 34-39): "...I was standing at the back of the truck and the car was sliding. I'm not sure if it was because the ground was like steep or just because the driver didn't stop the truck properly or if there was something wrong with the brake, as the car just started moving backwards and hit me." 45The plaintiff did not remember giving this answer, but thought that he did. He said that was how he understood the accident and had told Mr O'Brien what he knew. He said he "couldn't say the driver didn't stop because the driver is me" (T68.9) The plaintiff rejected the suggestion that he did not know if the utility rolled backwards because he forgot to put the handbrake on or did not put the vehicle in gear. He remembered, he said, putting the handbrake on before getting out of the utility. He denied that he was surmising that he may have turned the engine off as he usually put the brake on at that time. 46The plaintiff had earlier been asked by Mr Rewell (T67 2-29): "Q. Were you able to recall the accident at that time from your own memory? A. WITNESS: That's because I can't use English to tell the story. It is really complicated. He asking me what happened on the accident, why it happened. Like I didn't know how it happened. I only read the policeman report after the accident, so I just told him what I read from the policeman report. Q. What you have just said is exactly what you told him. Just let me read to you the question he asked and what you said to him: "So, if you are on a private property, like drivers are normally driving quite like slow, so I'm still puzzled as to how the accident actually occurred." That was his question. You answered: "Even myself was puzzled until I read the report from the police." A. WITNESS: I thought he was asking me how exactly the accident happened in that moment. I lost the memory of that moment. I only remember things before the accident. That's why I told him I can only read the policeman report. Matt told what happened from his view. Q. You had the assistance of an interpreter in the Mandarin language when you were speaking with Mr O'Brien, didn't you? A. WITNESS: But, frankly speaking, he can't even interpreter can't even understand what happened because without these pictures who knows it happened." 47A transcript of the record of interview on 1 February 2010 between Bruce O'Brien, an officer of the Department of Immigration and Citizenship and the plaintiff is ex ND3. 48The first defendant recounted in his evidentiary statement that on the morning of the accident the utility was in front of the packing shed. The plaintiff told him that he had a load of sawdust being delivered and asked "where do you want me to move the ute?" He replied "Just run it up past the Jackaroo and park behind it." The plaintiff then drove the utility passed the Jackaroo for about 15 metres. Mr Caldieraro saw him turn right, then reverse the vehicle and attempt "to turn the vehicle around rather than back it in behind the other vehicle as [he] had told him" (ex 1D1 par 30). He recalled that the plaintiff "then had the vehicle at right angles to the track with the rear wheels closest to the top of a 2.5 metre embankment which sloped down to the area in the front of the packing shed at an angle of about 45 degrees." He could see the passenger side rear wheel spinning (ex 1D1 par 31). 49When Mr Caldieraro reached the driver's side window of the utility, he asked the plaintiff (ex 1D1 par 33): "What do you think you are bloody doing?" Plaintiff replied: "The vehicles stuck. I need help. I don't know what to do." Mr Caldieraro told the plaintiff to get out of the vehicle, that he would take over. 50Mr Caldieraro related that he heard the engine being turned off, then saw the driver's door open and the plaintiff started to get out. As the plaintiff did so, Mr Caldieraro saw the utility start to roll backwards. He said to the plaintiff: "Put your foot on the brake, put your foot on the brake." (1DWS Par 37) It was the first defendant's evidence that the plaintiff had one foot inside the vehicle and one foot on the ground beside it and the vehicle continued to roll backwards. The plaintiff had his left hand on the steering wheel. Mr Caldieraro said that after the plaintiff opened the door, he did not see him attempt to engage the handbrake or operate the footbrake. He described seeing the plaintiff hopping on his right leg before the door pushed him over and he went underneath the vehicle. Mr Caldieraro stated that at no stage prior to the plaintiff being knocked over, was he completely out of the utility. The first defendant expressed the opinion that the utility was not in gear and the handbrake had not been engaged. He stated that he was familiar with the sound of the handbrake as it is engaged and did not hear its rachet noise. 51In cross-examination the first defendant said that no U-turns had been made on the road, and that when he saw the vehicle was stuck, he could see the wheel spinning. He agreed beneath the wheel was dirt but also said that "the incline beneath the wheel was an incline which was quite steep" and the embankment was about 45 degrees (T 91 49-50, T 92 1-11). 52In further cross-examination, the first defendant said he did not really know anything about the mechanics of the handbrake system but was sure that it works by the use of cable. He agreed that between 2006 and 2009, those cables could stretch and become worn (T98 11-24). He said that he had not called out a mechanic once a year to make sure that the utility was in good working order as "it never got used much", but agreed that the vehicle was used (T98 29-35). He agreed that the plaintiff was always a very careful person as far as he knew it and that he was never reckless or dangerous in the way he operated the vehicle. 53On the topic of the sound of the handbrake, the first defendant gave the following evidence in cross-examination by Mr Baran (T99. 11-22): "Q. And did this handbrake have one of those devices which had a button on the end of it? A. Yes. Q. And if you pressed the button and pulled the handbrake, that would be silent in terms of any ratcheting noise, correct? A. No, it's got a ratchet on it. You could hear it. Q. If you press the button and pull it up, it makes it silent? A. Yeah I know, but I have never pulled it up like that. Q. I am saying if that had been done, you wouldn't hear any noise? A. I am not sure." 54Mr Caldieraro explained that he was "maybe" 10 metres away from the utility when he said "what do you think you're bloody doing." He was about 3 metres away when he heard the engine being turned off, but he was not sure if he could see what the plaintiff was doing with his hands from the 10 metre to 7 metre mark. In cross-examination by Mr Rewell, Mr Caldieraro said that if the handbrake was pulled on without the button being depressed, the rachet sound could be heard "pretty well from a fair distance." He believed that if the handbrake had been applied when he was about 10 metres away from the vehicle, he could have heard it (T111 19-35). 55Mr Caldieraro testified that the utility came to a stop with the front wheels in the drain at the bottom of the embankment and its rear wheels on the level area in front of the packing shed. The plaintiff was lying near the front wheel in the gutter. He ran down the embankment to the plaintiff and lifted the front of the utility up and pushed the vehicle further away. He expressed the belief that had the vehicle been in gear with the handbrake engaged, he would not have been able to manoeuvre the vehicle as he did. 56Renato Caldieraro's evidentiary statement is ex 1 D2. For ease of identification and without in any way being disrespectful, I will refer to this witness by his given name. Renato was present at the packing shed on the farm on the day of the accident. He recalled after the plaintiff had a conversation with his brother (the first defendant), seeing the plaintiff get into the utility and drive it up "the unsealed side track beside the packing shed." There was, he said, a white Jackaroo already parked on the track which was facing away from the packing shed. He saw the plaintiff drive the utility about half way up the length of the track about 12 to 15 metres from the back of the Jackaroo. 57Renato described seeing the front of the vehicle turn towards the right so that it was positioned across the track. He then saw the vehicle reversing and turning so that its wheels were adjacent to the edge of the embankment that ran down to the level area in front of the packing shed. He heard the wheels spinning and "looked to see the passenger side rear wheel spinning before it stopped" (ex 1 D2 par 15). He heard the engine stop. 58Renato saw his brother walking up the incline towards the utility, but could not tell from his position, how close his brother was to the vehicle. He saw the plaintiff's head rise above the level of the cabin of the utility and in less than a second after that, the utility started moving slowly backwards towards the embankment. As it moved, Renato saw the plaintiff's head go up and down and then the vehicle moving backwards at a faster rate as the rear wheels went over the incline. By that time, Renato had lost sight of the plaintiff, but saw the utility's towbar hit the roadway. 59When Renato got to the vehicle, the plaintiff's head was in the concrete drain with his body lying on the road. He saw his brother move the utility to assist the plaintiff who at first appeared to be unconscious but opened his eyes and said "What happened? What happened?" 60When cross-examined by Mr Baran, Renato said that he did not see the plaintiff standing outside the vehicle nor did he see him standing with one foot on the brake and one foot on the ground. He accepted that his view might have been obstructed. He had been standing on the back of the LandCruiser looking up. He could not hear what his brother had been saying; he could not hear anything. Renato said that he had never done a U-turn or turned around on the gravel track. When shown the wheel tracks in Ex B, photo 1, he said that the manoeuvres in reversing and turning the utility were performed by the plaintiff "Right there. Right where you see the skid marks." (T127 32-34). 61Senior Constable Sams and David Davies, an inspector from WorkCover attended the farm on the day of the accident. Mr Caldieraro related that Mr Davies told him to get in the vehicle, to start it, to pull on the handbrake and slowly disengage the clutch as he was giving it throttle. He had done that, but the utility stalled. The vehicle did not move at all as he took his foot off the clutch. Mr Davies had also asked him to drive the utility forward, and to apply the footbrake. When he did so, the vehicle had stopped. 62Senior Constable David Sams gave evidence that he had arrived at the scene of the accident at 9.59am. He made a general inspection of the utility. He described the vehicle as not being a "paddy basher" but as being a reasonably serviceable vehicle. He did not think that the utility would have been passed for roadworthy registration but it was in a "usable state": T130 34-35. 63The police officer recalled sitting in the driver's seat of the utility and applying pressure to the brake pedal. He said there was pressure on the break, that it was not a "dead pedal". On pulling the handbrake on, Senior Constable Sams said that it appeared to come on in a normal manner. He heard audible clicks as he pulled the handbrake up. 64Senior Constable Sams recalled getting out of the utility which was in neutral. He tried to push the vehicle forward to see whether the handbrake mechanism was working but could not move it forward to any great degree. In his opinion, that indicated that the handbrake was effective at that time. He agreed, in cross-examination by Mr Baran, that the vehicle had been on the flat when the tests had been carried out and that he had not gone under it to see if the handbrake cable was broken. 65Mr Davies said that he had attended the farm approximately an hour, to an hour and a half after the accident. He asked for the steering and the brakes of the utility to be tested. Mr Caldieraro was requested to start the motor of the utility and to try to move it with the handbrake on. Mr Davies recalled that Mr Caldieraro in complying with his request, stalled the utility once he released the clutch trying to manoeuvre it. The vehicle might have moved very slightly but it was "pretty static" where it was and stalled. Mr Davies considered that it indicated that "possibly" the handbrake was reasonable and intact: T139 45-50; T 140 1-4. Mr Davies asked the first defendant to check the footbrake, both with the vehicle moving forward and in reverse. Mr Davies asked Mr Caldieraro to put his foot on the brake and upon application, the vehicle came to a "very quick stop." 66The WorkCover Inspector recounted that he went over the vehicle but nothing stood out as being unusual. He said that if the tyres had been completely bald he would have made a note of that. In cross-examination by Mr Baran, Mr Davies agreed that the testing was done on a flat surface. He said that when Mr Caldieraro "took his foot off to manoeuvre the vehicle the handbrake held and stalled the motor." T142 2-3. He said he was not familiar with the handbraking system in terms of its mechanism and how it was wired as he did not physically get under the vehicle. Matters of credit 67It is convenient to consider the plaintiff's contention that the first defendant sold the utility to scrap metal dealers in February 2010 so that the vehicle would be destroyed and could not be tested. The plaintiff invites the court to draw an inference from the destruction of the vehicle that the first defendant did not believe his own case "and the evidence used against him leads to the only probable conclusion that the handbrake in the circumstances failed when it was put into its proper position by the plaintiff" (PWS par 128). 68Of importance to the plaintiff's argument that the first defendant destroyed evidence critical to the plaintiff pursuing his case is the submission that the first defendant is not to be believed when he denied receiving a letter dated 25 November 2009 from the plaintiff's solicitors. The letter advised that the solicitors intended to have the utility inspected by an expert and requested advice as to when the vehicle could be made available for inspection at the farm. 69The letter and envelope in which it was enclosed (both ex G) were addressed to: "Mr Matteo Calieraro [sic] 241F Englands Road NORTH BOAMBEE VALLEY NSW 2450" 70The envelope bears a Return to Sender sticker dated "27/11" with "Left Address/Unknown" circled. 71During cross-examination by Mr Baran, Mr Caldieraro denied having a post box at 241F Englands Road or collecting mail from that address. He said that he lived at 241H Englands Road. He rejected the assertion that he was the person who put "return to sender" on the envelope (ex G). He agreed that he was aware by March 2010 of the proceedings being brought by the plaintiff but had not been aware late in 2009. He could not recall when it was that he first became aware the plaintiff intended to make a claim. 72Mr Baran was critical of this evidence and submitted that "the address of the letter was the very address given to police as the address where the accident happened": (PWS par 61). It appears that this submission is founded upon the evidence given by Senior Constable Sams about the COPS report (MFI 3) at T135 1-35: "Q. Senior constable, can I just ask you to go to page 1 of MFI 3? A. Yes. Q. And down the bottom there, you will see, "Narrative details, date/time created", it's got "1.51", then it has got "Sawtell Sams incident motor vehicle collision", do you see that right at the bottom? A. Yes. Q. Do you see it has got "LOC", which I assume is an abbreviation for location? A. That is correct. Q. "=241F Englands Road=, North Boambee Valley, New South Wales, 2450"? A. That's correct. Q. Doing the best you can, would that have been a location or an address given to you by one of the people who was listed as the witnesses on the next page? A. From memory, without having reference to my notebook, I am assuming. Again that is what has been recorded in the notebook. It also would be the reference that was given, if you look at page 6 which is on the top, that is the CAD dispatch which outlines where we went, the a couple of pages down not on that page, you go one, two, three paragraphs down, =241F Englands Road." 73A curious feature of the COPS entry is that it appears to provide the place of the accident as being 241F Englands Road whereas the address of the farm is 844 Englands Road. Mr Caldieraro did not live on the farm but intended to build a dwelling house on the flat area at the top of the track. 74Mr Baran did not put to Mr Caldieraro that he had provided the address 241F Englands Road to Senior Constable Sams nor was the police officer asked to recall who gave him the address that is recorded in the COPS entry. In any event, the COPS entry does not record the plaintiff's address as being 241F Englands Road. 75I am neither satisfied on the balance of probabilities that the first defendant received the letter (ex G) nor that he placed "return to sender" on it. There is no evidence that he was otherwise notified of the plaintiff's intention to make a claim other than the reference to a letter of 11 March 2010 from the plaintiff's solicitors enclosing "draft affidavits and summonses" in the letter dated 12 March 2010 from Ticli Blaxland Lawyers (ex F). This is consistent with Mr Caldieraro's evidence that he was aware of the proposed proceedings in March 2010. 76I am not persuaded on the balance of probabilities that Mr Caldieraro knew prior to 11 March 2010 that the plaintiff intended to commence proceedings for damages against him. 77The utility was sold to Sell and Parker Pty Ltd, scrap metal dealers on 4 February 2010 for $224. Mr Caldieraro testified that he sold two vehicles, a Holden Jackaroo 4 WD and a Toyota 4 WD Hilux to Raj Rana. He was not sure of the sale price, but thought that it was "a couple of hundred dollars maybe" (T83 11). Mr Caldieraro rejected Mr Baran's suggestion that he did not sell the Jackaroo. 78During the cross-examination of Mr Caldieraro, Mr Baran called for any documents or receipts about the sale to be produced. In closing submissions, one of Mr Baran's criticisms was that no documents regarding the sales had been produced although the call was extended to the next day. Mr Guihot informed me that a subpoena for the production of a whole range of documents had been served by the plaintiff on the first defendant on 3 October 2012 that was returnable on 18 October 2012, but the documents the subject of the call were not cast within the schedule of the subpoena. He pointed out that the Caldieraro family was in Sydney for the hearing and did not know if the call could be answered. 79I do not think that any inference adverse to the first defendant can be drawn by the failure to answer the call. Mr Caldieraro's evidentiary statement is dated 12 July 2012 and there is express reference to the sale of the three vehicles in paragraph 63. It was plainly open to the plaintiff to subpoena any documents relating to the sales or to serve a notice to produce. The first defendant was placed at a disadvantage by the call being made on 30 October 2012 whilst he was in evidence in Sydney. 80Mr Caldieraro explained that he sold the three vehicles as he no longer used the hothouses on the farm. There is no evidence from which the court can conclude that the utility was worth significantly more than the amount paid by the scrap metal dealers. It was a 1990 model which Senior Constable Sams described as being in 2009 reasonably serviceable and a "farm vehicle that was used as a cart horse" (T136.3). Furthermore, I am unable to conclude on the available evidence that the vehicles sold to Mr Rana were worth more than the amount that was said to have been paid for them. 81There was no reason for the first defendant to destroy the utility so as to render it unavailable for inspection by the plaintiff. The police and WorkCover inspections of the vehicle on the day of the accident did not reveal any defects in its braking systems. 82No submissions were made by counsel as to the standard of proof that might apply in light of the seriousness of the plaintiff's contention that the first defendant had deliberately destroyed evidence. An authoritative statement of principle on the standard of proof where fraud or criminal conduct is claimed, is found in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; 67 ALJR 170 (Mason CJ, Brennan, Deane and Gaudron JJ) at 449-450: "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (footnotes omitted). 83In any event, on the civil standard of proof, I am not satisfied that Mr Caldieraro sold the utility to Sell and Parker Pty Ltd to have it destroyed in order that the vehicle could not be inspected and tested. I accept Mr Caldieraro's evidence that he sold the utility as he no longer had any use for it and at that time he did not know that the plaintiff intended to institute legal proceedings against him. 84Mr Baran cited The Ophelia [1916] 2 AC 206 in which the Privy Council said at [229]-[230]: "If any one by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case." 85In Palavi v Queensland Newspapers Pty Ltd [2012] NSWCA 182 when discussing the principle in The Ophelia, Beazley JA observed at [20]: In Katsilis v Broken Hill Pty Co Ltd, Barwick CJ commented upon the presumption referred to in The Ophelia, stating, at 197-198, that the use of the word "presumption" put the matter too highly. Barwick CJ accepted that the failure to produce evidence would raise the inference that the document if produced would not assist the spoliator and that such inference would be "quite strong". However, the failure to produce the evidence was merely part of the entire body of evidence to be considered. If the destruction was innocent, the adverse inference would not be available, although the party's case would suffer from the lack of evidence. According to Barwick CJ, it was only where the failure to adduce "a piece of real evidence" was deliberate and the person concerned appreciated the relevant nature of the evidence, that the adverse inference could be drawn. 86In all the circumstances, I do not draw an adverse inference against the first defendant from the sale of the utility. 87Mr Baran was critical of paragraph 17 of Mr Caldieraro's evidentiary statement in which the first defendant states that he told the plaintiff "[t]he ute's in good condition, it's got nearly new tyres on it, they were put on more than twelve months ago but as you can see they have done very little work." Mr Baran put to me that the statement "to a degree" was false as the utility had not been serviced since 2006: T 174 1-9. 88Mr Caldieraro was not cross-examined by Mr Baran upon the contents of this paragraph. The plaintiff said that he did not remember the conversation. Mr Caldieraro did give evidence that the utility was not used much and had not travelled many miles since the tyres were purchased. I am neither able to conclude that the statement was false nor inaccurate. 89Mr Baran invited me to reject out of hand Mr Caldieraro's evidence that he had never seen U-turns performed on the gravel track before, but I decline to do so. The purpose of the gravel track was to provide access to the building site and it was little used. Renato said that he had never done a U-turn on the gravel track. His evidence supported the first defendant's recollection that the plaintiff did not make a U-turn. The wheel tracks in Ex B, photo 1, are not inconsistent with their evidence. I did not find the first defendant's evidence to be implausible. 90Whilst there was some imprecision in the evidence of the first defendant, I found him overall to be an honest and reliable witness. I do add that I found Renato Caldieraro to be a credible witness. 91The plaintiff impressed me as being a courageous person who was doing his best to recall what occurred before he was grievously injured. It was apparent, however, that on important matters of fact, his recollection was either mistaken or the subject of favourable reconstruction. 92The plaintiff's certainty in his evidence that he applied the handbrake before alighting from the utility is to be contrasted with the incertitude that he expressed to Mr O'Brien as to the circumstances of the accident during the interview on 1 February 2010. 93Mr Baran put to me that the plaintiff had disagreed with parts of the interview that were put to him by Mr Rewell "to the extent that it referred to issues of interpretation and translation": (PWS 45). Significantly, the plaintiff took issue with the use of the word "driver" in the passage of the interview quoted at [44] above. However, the transcript of the interview discloses that the question of who was the driver of the utility was clarified in the following exchange (ex ND3 p5-6): "O'Brien:You mean that the truck that you had been driving ran you over? Plaintiff:After I parked the truck I got hit by the same truck. There was no driver in the truck when the incident happened. O'Brien:... that's making some sense. Plaintiff:I was not facing the truck so I was not sure what exactly happened. O'Brien:... Okay, you weren't watching, you assumed you had parked the truck properly and that it wasn't going to move and you turned your attention away from it? Plaintiff:Yeah I parked the car and I left and I was a little worried as to how the truck was parked properly and it was sliding. O'Brien:So I was going to ask you, did the driver get in trouble from the police as a result of this but I'm not sure this is a proper question now? Plaintiff: ..., my lawyer is still I think doing some research about a mechanical problem of the truck and also possible the responsibility of my boss." (italics added) 94The interview was conducted with the assistance of a Mandarin Interpreter. 95It is evident from the plaintiff's responses that at the time of the interview, he was concerned that a cause of the utility moving backwards may have been his failure to stop the vehicle properly. 96Other matters that detract from the reliability of the plaintiff's evidence include the account in the evidentiary statement (ex C) that he asked the first defendant to park the utility as it had stalled, but he maintained during his oral testimony that he had turned the engine off; his initial response to Mr Guihot that he did not put the vehicle in any other gear than the first gear that it had been in and his evidence that all four tyres on the utility lacked tread. 97It emerged from Mr Guihot's cross-examination that the plaintiff had previously told his solicitors that he had placed the vehicle in neutral before turning the engine off. The plaintiff was unable to remember which gear the utility had been in before he alighted from the vehicle but remained adamant that he had put the handbrake on. Mr Rewell's cross-examination on the photographs (ex B) demonstrated that the plaintiff's recollection that all the tyres on the utility lacked tread, was clearly incorrect. To this, I would add Mr Davies' evidence that nothing stood out on the vehicles as being unusual, that he would have made a note if the tyres had been completely bald. 98Mr Baran submitted that the testing of the utility carried out by Senior Constable Sams was basic and the testing performed by Mr Davies was rudimentary. Both tests were carried out on the flat. Mr Baran pointed out that the utility had not been serviced since 2006 and the incline was approximately 45 degrees. 99Mr Rewell contended that a complete failure of the handbrake was inconsistent with the test carried out by the police officer, who felt the handbrake engage the rear wheels when he pulled the handbrake on and attempted to push the utility forward. He submitted that Mr Davies' test of the handbrake function was more thorough as the WorkCover inspector required Mr Caldieraro to sit in the driver's seat, apply the handbrake, place the vehicle in first gear, and attempt to drive forward against the handbrake. Mr Rewell argued that whilst these exercises were necessarily undertaken on the level area below the track, they were sufficient to prevent, any inference being drawn that the handbrake failed, partly or completely based on the plaintiff's challenged evidence that the handbrake must have failed, because he applied it but the vehicle rolled backwards. 100Although neither of the tests carried out by Senior Constable Sams and Mr Davies was thorough and both were carried out on a flat surface, the observations of the police officer and the WorkCover inspector are part of the circumstantial evidence, which when viewed in combination with the following circumstances does not support the plaintiff's evidence that he applied the handbrake: (i)neither the plaintiff nor the first defendant had difficulty with the handbrakes or footbrakes of the utility prior to the accident; (ii)Mr Caldieraro was able to lift the front of the utility up and push the vehicle further away when it came to a stop with the front wheels in the drain at the bottom of the embankment and its rear wheels on the level area in the front of the packing shed; and (iii)when Mr Caldieraro looked into the utility for the first time after the accident, he observed that the handbrake had not been engaged and the vehicle was not in gear. 101I give little weight to the evidence that Mr Caldieraro did not hear the ratchet sound of the handbrake being pulled on as the handbrake could be applied silently by depressing a button. There is no evidence as to the method adopted when the plaintiff said he put on the handbrake. Findings of fact 102The plaintiff's contention that the handbrake cable might have stretched remains a matter of speculation. There is no evidence that the use of the vehicle since its last service in 2006 was sufficient to result in the stretching of the handbrake cable thereby reducing its effectiveness. The plaintiff bears the onus of proof. I am not satisfied on the balance of probabilities that the plaintiff applied the handbrake before he alighted from the vehicle. Furthermore, I am not satisfied that the handbrake or the footbrakes or the tyres on the utility were defective or that the wheels of the utility started spinning and were not gripping due to the lack of tread on the tyres. 103I am satisfied that it is more likely than not, that: (a)the first defendant asked the plaintiff to drive the utility onto the gravel track and to "just run it past the Jackaroo and park behind it"; (b)the plaintiff was not asked by the first defendant to make any type of turn, but chose to do so at a point about 15 metres past the other vehicle; (c)The turn was a three-point turn, rather than a U-turn; (d)whilst turning the utility to the right, the rear wheels of the vehicle were either close to or on top of the embankment that sloped down at an angle of about 45 degrees to the area near the parking shed; (e)as the plaintiff sought to move forward the passenger side rear wheel began spinning; (f) the plaintiff told the first defendant that the vehicle was stuck, he needed help and did not know what to do. The first defendant responded by telling him to get out of the vehicle, that he would take over; (g)the plaintiff turned the engine off, placed the utility in neutral and commenced to alight from the vehicle. He did not apply the handbrake and as a result, the utility commenced to roll back; (h)at no stage did the plaintiff completely disembark from the utility. He had his left foot in the vehicle and his right foot on the ground beside it; (i)as the utility started rolling backwards, the first defendant said to the plaintiff "put your foot on the brake, put your foot on the brake"; and (j)the plaintiff attempted to place his left foot on the brake but was knocked to the ground. The vehicle rolled over him, carrying him down the slope to the level area several metres below. 104In the result, the plaintiff's action must fail against the first defendant and the Nominal Defendant. He has failed to establish that his injury was caused by the fault of the first defendant (s 3A(1) MAC Act) or that the first defendant was negligent and had breached his duty of care. I find that the plaintiff's injury was caused by his own failure to apply the handbrake and to leave the utility in gear before disembarking from the vehicle. 105The plaintiff's lack of success renders the Nominal Defendant's cross-claim nugatory. Accordingly, the cross-claim will be formally dismissed. 106The plaintiff did not plead in the alternative that his injury resulted from "a blameless motor vehicle accident" under Part 1.2 Division 1 of the MAC Act. It is therefore unnecessary to consider the provisions of Division 1 of Part 1.2 and s 3B of the MAC Act. 107One further point I ought to mention is Mr Guihot's argument that the first defendant was not the owner of the utility, but the plaintiff was as he was entitled to the immediate possession of the vehicle. It appears to me that the plaintiff's entitlement was not exclusive as the first defendant considered that he could use it in the plaintiff's absence and without his permission. I find that the first defendant was entitled "in common" with the plaintiff to the immediate possession of the vehicle and was the owner of it within s 4(1)(b) MAC Act. Did the accident occur "on a road"? The legislative background 108Although he has been unsuccessful, the plaintiff will be admitted into the Lifetime Care and Support Scheme if the accident occurred "on a road" within the statutory meaning in the MAC Act. 109Section 33(1) MAC Act relevantly provides: "An action for the recovery of damages in respect of the...injury to a person caused by the fault of the owner or driver of a motor vehicle that it is not an insured motor vehicle in the use or operation of the vehicle on a road in New South Wales may be brought against the Nominal Defendant." 110The word "road" is defined in s 3 MAC Act to mean "a road, or a road related area, within the meaning of the Road Transport (Vehicle Registration) Act 1997." 111The definitions of a "road" or "road related area" are found in s 4 Road Transport (Vehicle Registration) Act : "road" means an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles. "road related area" means: (a)an area that divides a road, or (b)a footpath or nature strip adjacent to a road, or (c)an area that is open to the public and is designated for use by cyclists or animals, or (d)an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or (e)a shoulder of a road, or (f)any other area that is open to or used by the public and that has been declared under section 15 of the Road Transport (General) Act 2005 to be an area to which specified provisions of this Act or the regulations apply. A review of the evidence 112The accident occurred on a gravel track that led to a flat area where Mr Caldieraro had intended to build his family home. The gravel track was wholly within the farm, the boundary of which was approximately 478 metres from Englands Road. Englands Road was a bitumen sealed public road that provided access to numerous properties within the North Boambee Valley area. Access to the farm was provided by rights of carriageway shown in plan no 10076/2 (ex ND 4). The access road had a bitumen surface. 113It is common ground that there were no fences, gates, grids, cowcatcher or signs that restricted or forbade entry to the farm. 114In cross-examination by Mr Rewell, the plaintiff agreed that the easy method of accessing the hothouses was by the gravel road, shown in Ex ND 2 photo 1, that went past the packaging shed and was at a lower level to the gravel track, unless the whole lower level was flooded. He agreed that the gravel track had no purpose other than to provide access to the building site, except for a period of flooding. He did not notice building work of any kind that had been done by the time of the accident, but had seen some trucks parking there: T 53 42-54 45, 56 42-46. 115During cross-examination by Mr Baran, the first defendant said that the farm business grew avocados, a few bananas (that weren't harvested) but the major focus was what was being grown in the hothouses. He supplied J Allen Pty Ltd who would haul his produce from Coffs Harbour to Brisbane. Trucks would not come to the farm. The produce would be bought out with a ute and taken to Charter Freight Lines. The first defendant said that he was involved with Mi Organics who delivered pine sawdust on a regular basis. 116Whilst acknowledging he was running a commercial enterprise, Mr Caldieraro did not agree that if people wanted to buy fruit and vegetables from him, they were free to do so and come onto the farm. He said (T 102 9-10): "No, we never sold anything off the property. No-one ever come on the property to buy goods." 117Mr Caldieraro agreed that at the time of the accident, the plaintiff was operating Chen's Veg. On this topic, Mr Caldieraro was asked by Mr Baran (T 103 3-9): "QAnd again there was no restriction in terms of anyone coming to the property if he [the plaintiff] wanted to supply them with any fruit or vegetables, was there? ANo, no-one ever come on the property. He never sold anything from there. QBut if someone from the public wanted to come in and buy some cucumbers, there was no problem with that, was there? AOh, no." 118The first defendant in cross-examination by Mr Rewell reiterated that farm produce was never sold at the property either by himself or the plaintiff. He said that it was never part of his business to sell produce at the farm nor had the plaintiff suggested that he might. It was never part of the commercial relationship between himself and the plaintiff to sell produce to the members of the public at the farm nor had he envisaged that there would be. No one other than his brother Renato, his father and the plaintiff worked on the farm. No one other than the plaintiff had a license to use the hothouses. Only drivers delivering sawdust came on to the property, with whom either he or the plaintiff had a commercial relationship. Mr Caldieraro said that he took the produce out of the farm in a utility to the freight depot. 119It was Mr Caldieraro's evidence that there was no residences on the farm and, to his knowledge, no one else came onto the farm other than his family members and persons with whom he had a commercial relationship. He agreed that everybody who came onto the farm was either working there or was being paid for a delivery (T 106 5-6). 120Mr Caldieraro said that the white 4 wheel drive vehicle in the photographs (ex B) was his vehicle. He had left it there as it had a flat battery. Mr Caldieraro recounted that the building site was levelled about 18 months before the accident, which was before he had any arrangement with the plaintiff and the gravel track was built as part of "the home site levelling process (T107 32). The gravel track was never used to travel to the hothouses. 121Renato gave evidence that bananas were never sold at the farm, that they were picked by him and taken to the market. Submissions 122Mr Baran submitted that the farm was open to the public. It was open to delivery trucks who came to deliver the sawdust and the first defendant's contention that only members of the family ever visited the property must be considered in light of the first defendant's lack of credibility to be nonsense. He argued that the gravel track was not a "so-called driveway", that all witnesses had agreed that there were no barriers or signs to restrict entry to the farm. He argued that "for a commercial enterprise growing avocados, bananas and vegetables in hothouses, such a conclusion must be absurd having regard to the fact that the property serviced a particular market of organic fruit and vegetable growers which would have had to have included potential organic fruit and vegetable buyers who would have to at least visit the property from time to time and inspect the produce or speak with the first defendant or other people on the property for the purpose of transacting business that could include anyone" (PWS p 26 154-155). 123I interpose here to mention that there is no evidence that any potential fruit or vegetable buyers visited the farm to inspect the produce nor was Mr Caldieraro or his brother Renato asked how the buyers inspected the farm produce or came on to the farm. Mr Caldieraro's evidence was that he loaded a utility with the produce and delivered the load to Charter Freight Lines. Renato said that he took the bananas to the market himself. I did not find their evidence to be nonsensical. 124In oral argument, Mr Baran submitted that "the mere fact that what was there was a road, as we would contend, and not a driveway but a road capable of having fit well within its boundaries a motor vehicle would lead to the very easy inference that it was a road as defined under the transport legislation open to the public" (T 179 15-20). In the course of submissions, Mr Baran drew my attention to Ryan v The Nominal Defendant [2005] NSWCA 59, (2005) 62 NSWLR 192 and quoted what was said by Santow JA at [82]: "Other private property - Third, in the case of a place which the public has no entitlement or invitation to use, it can only be said to be "open to the public" if it is in fact used by members of the public, the owner having failed consistently to maintain a prohibition on that use, though the users be technically trespassers. Tolerance of the owner is a shorthand description of that state of affairs." 125On the other hand, Mr Rewell pointed out there was no evidence that any trespassers had been present on the property, or had made any use of the sealed road leading to the gravel track or the gravel track itself. Mr Rewell submitted that the gravel track was located well within private property, where the only entitlement to enter was as an invitee. Senior Counsel for the Nominal Defendant contended that the plaintiff had failed to demonstrate that the first defendant, or anyone else, made any invitation to the public to use the gravel track and had further failed to show that the first defendant, or anyone else, permitted any use of the gravel track by the public as members of the public. Mr Rewell submitted that there should be a finding that the track was not "open to or used by the public." Findings of fact 126I find as matters of fact: (i)The plaintiff's accident occurred on the gravel track which was wholly within the farm. The farm was private property owned by Mr Caldieraro. (ii)The gravel track led to the flat area where Mr Caldieraro intended to build his family home. (iii)There were no fences, gates, other barriers or signs that restricted or forbade entry to the farm or to the gravel track. (iv)Other than Mr Caldieraro, his brother Renato and their father, the only persons who came on the farm were the plaintiff, who had a license to use the hothouses and drivers from Mi Organics who were delivering pine sawdust to the farm under commercial arrangements. (v)Neither the first defendant, his brother Renato or the plaintiff sold farm produce to the public at the farm. (vi)There was no invitation to the members of the public to purchase produce from the farm or to enter the farm for any other reason. (vii) Members of the public did not enter the farm as trespassers and did not use the sealed access road within the farm's boundary. (viii) Members of the public did not walk along, drive along or use in anyway the gravel track. 127In Schubert v Lee (1946) 71 CLR 589 Latham CJ and Rich and Dixon JJ said at 592: "The words "open to or used by the public" are apt to describe a factual condition consisting in any real use of the place by the public as the public -as distinct from use by licence of a particular person or only casual or occasional use." 128Members of the public did not enter the farm or use the gravel track. Other than the family members, those who entered on the farm being the plaintiff and the Mi Organic's drivers were there by invitation, which set them apart from members of the public generally. Santow JA observed in Ryan v Nominal Defendant at [82(2)]: "Private property to which the public are invited - Second, in the case of a place which is held open by a private owner for the public to enter, the place will be considered to be "open to the public" only if the owner is in fact making it available to the public. The openness is co-ordinate, both in scope and in time, with the owner's invitation. Those who use the place are invitees and unless the invitation is issued indiscriminately to the public at large the place will not be open to the public..." 129There was no invitation to the public to enter the farm or to use the gravel track, notwithstanding the absence of gates, barriers or signs. Conclusion 130I do not find that the gravel track was "open to or used by the public" so as to constitute a road within the MAC Act. Orders