Sullivan v Stefanidi

Court of Appeal (NSW)|2009-09-18|Before: Ipp JA, Basten JA, Macfarlan JA, MacFarlan JA

CITATION: Sullivan v Stefanidi [2009] NSWCA 313

JUDGMENT OF: Ipp JA at 1; Basten JA at 2; Macfarlan JA at 18

DECISION: The appeal is dismissed with costs.

Civil Liability Act 2002 (NSW) LEGISLATION CITED: Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW)

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; 135 CLR 616 Imbree v McNeilly [2008] HCA 40; 236 CLR 510. CASES CITED: Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 Wyong Shire Council v Shirt [1980] HCA 12; (1979-1980) 146 CLR 40

PARTIES: Timothy Sullivan (Appellant) Yuri Stefanidi (Respondent)

COUNSEL: P Deakin QC/J Turnbull (Appellant) M J Cranitch SC/A Campbell (Respondent)

SOLICITORS: Carroll & O'Dea (Appellant) Gerard Malouf & Partners (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40404/08 DC 1831/06

IPP JA BASTEN JA MACFARLAN JA

FRIDAY 2 OCTOBER 2009 SULLIVAN v STEFANIDI Judgment 1 IPP JA: I agree with Macfarlan JA. 2 BASTEN JA: The appeal in this matter should be dismissed with costs, for the reasons given by Macfarlan JA and for the additional reasons noted below. 3 The most significant challenge raised by the appellant to the findings on liability made by the primary judge (McLoughlin DCJ) was directed to the formulation of the duty of care. The trial judge held that on hearing a loud noise and feeling a bump, which appeared to come from underneath the vehicle, the appellant, exercising reasonable care for the safety of others on the road, would have stopped at the first available opportunity to inspect the underside of his vehicle to ascertain whether any damage had been occasioned: Judgment, p 8. The appellant's failure to take that step was held to be negligent. The next step, which did not arise in the circumstances, but was a necessary element in the finding of causation, was that the appellant, having identified the significant hole in his fuel tank, which had been spilling diesel on to the roadway, should have taken immediate steps to notify other road users of the danger created by the spillage. 4 The appellant's challenge to these findings was threefold. First, he submitted that the duty upheld by the trial judge operated differentially between truck drivers and other road users and was therefore inconsistent with the approach mandated by the High Court in Imbree v McNeilly [2008] HCA 40; 236 CLR 510. Secondly, he submitted that the standard was not an objective one, but depended upon the subjective appreciation of the driver as to the significance of the bump and the noise. Thirdly, he submitted that if the test properly took into account his assessment as a professional and experienced driver of large vehicles, the fact that he did not at the time appreciate what had occurred should have been given greater (possibly decisive) weight in the assessment of whether there had been a breach of duty. 5 So far as the variable duty is concerned, there is a difference between imposing disparate standards of care on categories of driver (such as, in Imbree, drivers without full licences) and imposing a standard which will operate disparately depending on the circumstances. The fact that the driver of a car with a punctured petrol tank would often not be in a position to give an immediate warning by two-way radio to other road users with such devices, says nothing about the conduct reasonably required of a person with such a radio. If it were reasonable to expect a truck driver with a two-way radio to broadcast a warning, the failure to take that step would not give rise to liability to the driver of a car who lost control as a result of the spillage, but had no radio to receive the warning. The obligation imposed on the driver is to take such steps as are reasonably available to that driver once the danger is identified. The fact that the standard may operate differentially depending on the circumstances does not mean that there have been different standards applied. 6 In relation to the second submission, while it is correct to say that the appellant was obliged to assess the significance of the incident which punctured the fuel tank, that does not mean that the standard of care depended on his subjective assessment of the seriousness of the incident. Rather, the trial judge expressly applied the standard of a reasonable driver to determine that the actual conduct of the appellant did not conform to the standard. 7 In relation to the third submission, the conduct of the driver and his evidence as to what he thought had happened were undoubtedly material to the assessment of whether there had been a breach of duty. It was no doubt also relevant to take into account his experience as a professional truck driver. The trial judge clearly made such an assessment, having those factors in mind, but nevertheless found breach, being a conclusion open on the evidence. The appellant cannot readily challenge the finding of the trial judge with respect to his conduct in circumstances where the trial judge made adverse findings in relation to his evidence. 8 In part, the last point was sought to be supported by the proposition that none of the drivers or the experts appeared to have knowledge of a fuel tank being ruptured in the way that occurred in this case. That fact, however, did not materially affect the approach adopted by the trial judge. His Honour did not hold that the appellant should reasonably have foreseen the precise event on hearing the noise and feeling the bump. Rather, his Honour found that the driver should reasonably have foreseen the possibility of damage to any one of a number of vulnerable parts on the underside of the prime mover, having the potential to cause harm to other road users. No error was demonstrated in that approach.

Challenge to factual findings 9 On the hearing of the appeal, counsel for the appellant sought to challenge a number of specific findings made by the trial judge and relevant to the question of causation. In the amended notice of appeal, two grounds challenged the finding that the appellant "could have pulled over safely in time to warn the respondent": grounds 9 and 10. Two further grounds challenged the finding that the appellant's reason for not pulling over sooner was that it was raining: grounds 11 and 13. The latter point is of no present relevance. The former point involves a number of elements, namely:

(a) the opportunity for the appellant to pull over safely; (b) the time required to identify the damage to the truck, and (c) the time required to broadcast a warning that there was fuel on the roadway. 10 Each of these variables was considered by the trial judge. Once it had been accepted that the appellant had a duty to inspect his truck for damage, the real issue as to timing was when the first reasonable opportunity to undertake that task safely arose. Two such opportunities were identified: the first involved a site approximately 300 metres beyond the point where the spillage commenced, which was where the driver of a following truck (Mr Bishop) had pulled over and started to broadcast a warning. A second site was some 500 metres further along the highway. Each of these sites would have allowed the appellant to take the necessary steps identified above within, as the trial judge found, a period of two minutes. His Honour concluded from other evidence discussed by Macfarlan JA that there was in fact a period of at least six minutes between the time of the spillage and the time of the accident in which the respondent was injured. 11 On the appeal, counsel for the appellant sought to raise three matters which were not identified in the amended notice of appeal. The first, which was squarely raised in the written submissions, was that the evidence as to the traffic flow on the night in question was inconsistent with a finding that there could have been a period of six minutes between the spillage and the accident involving the respondent. Secondly, the appellant submitted that because he was unfamiliar with the highway, even if he had identified the hazard promptly, he would not have been able to broadcast a useful message. That point was not raised in the notice of appeal, nor in the submissions, but only in oral argument. Further, as noted by Macfarlan JA at [62], it was not raised before the trial judge. Thirdly, the appellant sought to argue that there was no evidence that, if the warning had been broadcast, the respondent would either have heard it or acted upon it in such a way as to avoid the accident. That challenge was not identified in the amended notice of appeal, or in the written submissions, nor was it put to the trial judge. 12 The first of these matters has been addressed by Macfarlan JA and properly rejected at [57]-[60]. So far as the second matter is concerned, the question of the ability of the appellant to describe with sufficient accuracy the point at which the spillage had occurred was not merely a point not taken below, but was one upon which the appellant gave no specific evidence. Thus, the respondent was not on notice as to an issue which could have been raised by him in cross-examining the appellant. This was not merely a matter of a lost opportunity to call evidence in response: see Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418. Raising this as an issue involved an attempt to re-craft a case which the appellant should have expressly run at trial and did not. 13 The third complaint, namely that the respondent did not prove that he would have heard and acted on the warning, was also not put below. No doubt on that point the respondent had an onus of proof. Had it been raised in the course of the trial any omission to call evidence would not necessarily have been fatal to the respondent; he could have sought leave to reopen his case. (No doubt the scope of his own evidence would have been curtailed, though not necessarily wholly precluded, by s 5D(3) of the Civil Liability Act 2002 (NSW).) Although he might not have obtained leave, that again would have been a matter for the trial judge to determine. An assessment of the strength of any relevant evidence would have required cross-examination and a finding by the trial judge on credibility. The opportunity to call such evidence was lost because the point was not raised below. 14 I agree with Macfarlan JA that the appellant cannot rely upon these latter arguments on appeal. There is a further reason for that conclusion. 15 Although the appeal to this Court is described as one "by way of rehearing" (Supreme Court Act 1970 (NSW), s 75A(5)) it is well-understood that this does not involve a fresh hearing of the evidence: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; 135 CLR 616 at 620 (Mason J); Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297-298 (Glass JA). As is usual, there was no application on the present appeal for this Court to hear further evidence, although it has power to do so in particular circumstances. It follows that the power of this Court to make findings of fact which were not made by the trial judge, in circumstances where the issue did not arise at trial, will be quite limited. So that both the respondent and Court can be on notice that specific findings are challenged, or that further findings are required, those matters should be identified with particularity in the notice of appeal. Further, as the Uniform Civil Procedure Rules 2005 (NSW) specifically provide at r 51.36(2): "Submissions raising substantial challenges to findings of fact must include a statement in narrative form (not exceeding 20 pages) setting out: (a) the findings challenged, and (b) the findings contended for and the reasons why the court should substitute those findings, and (c) supporting references to the transcript and other evidence." 16 The page limit prescribed by the rule is likely to be well beyond that which is required in most cases, but it serves to underline the need for a degree of particularity in specifying the matters identified in the rule. The rule has many purposes, including ensuring that the respondent has proper notice of what findings of fact are challenged, providing information which will allow the parties and the Registrar to identify the time likely to be required for the hearing of the appeal and giving proper notice to the Court as to the material which should be reviewed in preparing for the hearing of the appeal. Late amendments to raise such issues will not necessarily be allowed; the attempt to raise such matters without seeking leave to amend is less likely to receive a favourable response from the Court. 17 Factually, this was undoubtedly an unusual case. Nevertheless, the judgment at trial was not attended by any error, properly raised on the appeal. 18 MACFARLAN JA:

Nature of Case and Conclusions 19 In this case, the semitrailer which the respondent was driving on the Pacific Highway skidded on diesel fuel and collided with an oncoming vehicle. The diesel fuel had leaked from a semitrailer driven by the appellant. A fuel tank on that vehicle had been hit by an object such as a rock as it had earlier passed through. 20 Despite hearing the noise of the object hitting his vehicle and feeling a bump, the appellant did not stop. I have concluded that in the particular circumstances of this case (as to which see [48] to [55] below), the primary judge was correct in finding that it was negligent for the appellant not to stop and check his vehicle as soon as he reasonably could. 21 If the appellant had done this, he would have had sufficient time to broadcast a warning of the hazard on his two-way radio and, as the primary judge held, the accident would have been avoided.

Factual Circumstances 22 Near to midnight on 18 October 2004, the respondent was driving a Road Master B-Double combination truck south along the Pacific Highway between the towns of Nambucca Heads and Macksville, New South Wales, when he lost traction on the road due to the presence of spilt diesel fuel, and crashed into another truck which was travelling north. The respondent suffered serious injuries and in these proceedings sued the appellant for damages, alleging that his injuries were caused by the negligence of the appellant. 23 A short time prior to the accident, the appellant drove a Kenworth B-Double prime mover, with two trailers attached, past the soon-to-be crash site. It is now common ground that at a point near to that at which the respondent later had his accident, the appellant's vehicle was hit by a rock or other object which caused the vehicle to commence to leak diesel fuel and that the presence of this diesel fuel on the road caused the respondent's accident. The point at which the accident occurred was about seven kilometres south of Nambucca Heads and about eight kilometres north of Macksville. The appellant gave evidence that he had had a break from driving at a location about twenty kilometres north of Macksville (and therefore north of Nambucca Heads). He left there at about 11.30pm. The time at which he subsequently stopped south of Macksville was shown in his records as midnight. He said that as he left his rest stop at about 11.30 pm there was heavy rain, with water running down the side of the road. Not long after, he was negotiating a left hand bend on a reasonably flat part of the road when he heard a "bang" which "sounded like a rock hitting the side of the truck". He said that there were other trucks, or other vehicles, travelling in the opposite direction at about that time. He could not recall any vehicles travelling in the same direction as he was travelling. He described the level of traffic on the Pacific Highway at that time of night as "half a dozen vehicles every now and again". 24 His evidence was that he did not notice anything unusual in the behaviour of the truck after it had been hit by the object and that he simply kept driving, reaching the bridge across the river at Macksville after 10 to 15 minutes. He said that he was "inside the town" of Macksville when he heard on his two-way radio that there had been an accident on the road behind him. His evidence was unclear as to whether it was in that radio message, or one soon after, that the information was conveyed that there was "oil" on the road where the accident occurred. He was still in Macksville when he heard about the "oil". He then said: "I remembered the bang on the side of the truck and - well what I thought was on the side of the truck and I thought I better find somewhere to pull up and make sure my sump wasn't leaking and it wasn't my oil".

When he found a suitable place to stop, he found that his sump was intact but that diesel fuel was running out of his driver's side fuel tank, through a hole which he said was probably "about the size of a tennis ball" and "jagged". 25 When asked in cross-examination whether he was startled by the bang noise, he replied: "Yeah well a bang makes you jump". He then agreed that the bang was loud enough to startle him and that it was fair to assume that it was a "pretty loud bang". However he denied that he actually felt anything at the time. He was "unable to say" whether he had told the police in 2004 that he had felt a "bump". In that respect, police notes of a telephone conversation with the appellant in the early hours of 19 October 2004 record the following: "Thought a Rock Flew up and hit the truck. Felt a Bump". 26 The appellant said that when he heard the bang he thought it was on the side of the truck although later inspection revealed that it wasn't. He agreed that there were "fuel lines, oil lines, there's lots of vulnerable structures under the truck".

The Judgment at First Instance 27 The primary judge, McLoughlin DCJ, described the puncture as being one about the size of a fist on the underside of the right hand, or off side, fuel tank. Photographs in evidence show that the fuel tank in question was more than a metre in length, low to the ground and commencing in the order of a metre or less behind an extension of the vertical edge of the driver's cabin door. The front (double) wheels of the truck were situated under the driver's cabin and the two sets of (double) rear wheels on the prime mover were situated immediately to the rear of the tank. The side and underside of the tank were exposed. The impact occurred near the forward part of the tank. 28 Relying upon the contemporaneous record of the police officer's notebook, the primary judge found as a matter of probability that the appellant "heard a loud bang and felt a bump". He said that the noise "must have been underneath the vehicle and the bump either the prime mover going over an object or the object striking the fuel tank causing a bump like sensation. Because of the damage caused, such noise and bump must have been very loud and obvious to" the appellant. 29 After referring to evidence of the appellant that he was "unaware of running over any item, or of any loss of traction immediately after hearing the bang". His Honour said: "However both Mr Simpson [the respondent's expert] and Mr Griffith [the appellant's expert] are of the view there must have been some coating to the [appellant's] tyres shortly after the spillage and some traction loss within a reasonably short time span, and there should also have been some increase in engine revs which would have been able to have been heard. The [appellant] gave no evidence of any of these matters and I am of the view that he must have observed more by the sound and in his vehicles performance, than that which he has told the police officers or told the court. I form this view from the evidence of both Mr Simpson and Mr Griffith, although where there is difference between the two, I prefer the evidence of Mr Simpson because of the forces required that punctured the hole in the fuel tank". 30 His Honour then said: "There are many components underneath a vehicle which could be damaged by an object being thrown up in the manner that the [appellant] felt and heard and a number of these would be capable of causing either damage to the mechanisms of the vehicle and hence spillage, steering loss, power loss or some such other response in the vehicle that may cause danger to other road users. In the circumstances I accept the evidence of the [respondent] and other drivers that such a loud noise and the feeling of a bump, which must have been underneath the vehicle would have caused a proper and reasonable driver to stop at the first available opportunity to inspect the underside of his vehicle to ascertain whether any damage had been occasioned. Had the [appellant] done that, he would have observed the oil leaking onto the roadway. I am of the view that, because of the weather conditions, the [appellant] obviously put the concerns of the noise and bump behind him quickly and continued to drive leaving the diesel oil to flow onto the roadway creating significant dangers to other road users, as it would have been inconvenient for him to stop in those circumstances". 31 The judge then referred to the evidence of Mr Bishop who was also driving a B-Double truck and had overtaken the vehicle being driven by the respondent. He observed the respondent's vehicle travelling behind him. When he came to the bend where the respondent, shortly after, crashed, his vehicle slid on the diesel fuel but Mr Bishop managed to regain control. As he was conveying a message on his two-way radio as to the slippery surface, he saw the respondent, travelling behind him, collide with a vehicle travelling in the opposite direction. Mr Bishop stopped his vehicle at a location about 300 metres further on, broadcast on the radio the fact that there had been a collision and then went to render assistance to the respondent. 32 The judge made the following findings as to causation: "If the [appellant] had done that which a driver exercising proper care for other road users [would have] done, he would have brought his vehicle to a standstill, probably at the 300 metre mark where Mr Bishop did, or at the outside the 800 metre mark still some seven kilometres or so before his vehicle was at the time the oil spill was broadcast. The conditions were poor and I would infer that the [appellant's] vehicle was travelling at between 70 and 80 kilometres per hour on that stretch of roadway between where the accident occurred and Macksville. At 80 kilometres per hour the [appellant's] vehicle would have travelled eight kilometres in six minutes and at a less speed a slightly longer period than that. When one accepts that the [appellant] did not stop until five kilometres beyond Macksville it is my view that he was south beyond the Macksville bridge when he first heard the suggestion of there being an oil or diesel spill as he then commenced to look for a place to stop. It follows from what I have said that in my view six to nine minutes elapsed between the time the [appellant's] vehicle spilt the oil on the first occasion and the accident that involved the [respondent] occurred. The question of causation is whether within that time could the [appellant] have stopped his vehicle and radioed a warning message that would have caused the [respondent] to stop his vehicle or significantly slow down so as to ensure that the oil on the road was observed and navigated at a very slow speed. If the [appellant] had been the prudent driver that he should have been, in my view, he would have stopped at the 300 metre mark and would have observed the oil spilling from his truck within one or to two minutes of the spill occurring. He would have notified other drivers on the [two-way radio] of the existence of oil on the roadway and hence the danger. If he did not stop there, prudence would have required him to stop at the next stop which was some 800 metres from the accident site, again in a position where he could have notified other road users, in a period of under two minutes, of the fact that there had been a diesel oil spill on the roadway rendering the roadway dangerous. The [appellant] did not do this and I accept he did not do it because of the weather conditions, and whilst he had heard the noise and felt the bump and would have lost some of the traction and engine changes, they were all matters which would have alerted a prudent driver to the need to stop. He chose not do so because it was inconvenient, and in doing so he was aware that there was a risk of damage to the under body of his prime mover that could effect a range of different working parts of the truck from air supplies, oil supplies, sumps, driving mechanisms or other matters that may bring about leakage, erratic driving or damage to the vehicle that in turn may endanger other road users". 33 Near the conclusion of his judgment, the judge reiterated that "there must have been some loss of steering or traction, which may have only lasted for a short period of time, but would have alerted a prudent driver". He said that he did not accept the appellant as a "frank and honest witness".

The Challenge to the Finding of Negligence 34 The basis upon which the appellant attacked the primary judge's finding of negligence was summarised as follows: "12 The trial judge found … that the Appellant was negligent in failing to stop and check the road worthiness of his vehicle after hearing a loud bang whilst driving the vehicle. Inherently this finding required His Honour to be satisfied that the Appellant owed the Respondent a duty to stop and check the road worthiness of his vehicle in the circumstances. However such a finding enlarges any duty the Appellant owed to the Respondent to an unacceptable extent. The content of such a duty could not, for example, apply to the ordinary driver driving a motor vehicle in which there was no 2-way radio. Nor could it apply in circumstances where the Respondent was not a truck driver who could hear a warning but was simply an ordinary motorist who did not have access to such warnings. The finding of His Honour in relation to the duty owed by the Appellant to the Respondent is a finding of a subjective duty. 13 In Imbree v McNeilly (2008) HCA 40 the High Court held that the standard of care owed by a driver to someone who might foreseeably be injured by a lack of care is an objective standard. The Court emphasised that the duty does not vary with the particular aptitutde or temperament of the individual, but is to be applied uniformly [para 53] and [para 70]. 14 The suggestion that every time a driver hears a noise of subjective description arising from an object striking the vehicle, he is duty-bound to pull off the road and come to a stop as soon as possible and thereafter inspect his vehicle for damage places an unreasonable and unduly onerous responsibility on all drivers. The Respondent himself agreed … that whether or not a responsible driver would be caused to stop by hearing a noise of something striking his truck depended upon what sort of noise it was, how loud it was and where the noise comes from". 35 I do not consider that the decision of the High Court in Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510 is of assistance to the appellant. In that case, the High Court held that the standard of care which a learner driver owed the supervising passenger was the same as that owed by any other person driving a motor vehicle to take reasonable care to avoid injury to others. There is no question here of the appellant being subject to a standard of care different to that to which other road users are subject. 36 In considering breach of duty it is however relevant, indeed essential, to consider how a reasonable person "in the defendant's position" would have responded to an identified risk (Wyong Shire Council v Shirt [1980] HCA 12; (1979-1980) 146 CLR 40 at 47). In a case such as the present, involving a motor vehicle accident, the "position" of the defendant to be considered includes a multitude of circumstances, such as the type and characteristics of the vehicle which the defendant was driving and the prevailing weather conditions. The relevant circumstances in the present case also include the fact that the appellant had a two-way radio in his truck and that, as the evidence made clear, two-way radio was a common means by which truck drivers communicated with each other, including as to potential road hazards. Consideration of breach of duty required the primary judge to consider, as he did, whether and in what way a reasonable person in the position of the appellant would have used his two-way radio on the night in question. As was recognised at the conclusion of [14] of the appellant's written submissions (see [34] above) the response which a reasonable driver would have made to the circumstances in which the appellant found himself was dependent upon matters of fact and degree. 37 In the course of the appellant's argument on the appeal, attention was focused on the primary judge's finding that not only did the appellant hear a loud bang but also he felt a bump and must have observed more by the sound and his vehicle's performance than he was prepared to admit (see [29] above). 38 The reference to the vehicle's performance was to some traction loss and "some increase in engine revs which would have been able to have been heard". If these findings stood, it was clear in my view that, as the primary judge found, the response of a reasonable person in the appellant's position would have been to stop at the earliest available opportunity. It is necessary therefore to examine the findings. 39 The finding as to the occurrence of a loud bang reflected the appellant's evidence and accordingly there is no challenge to that finding. 40 The primary judge's finding that the appellant felt a bump was however challenged but in my view that challenge cannot be sustained. The finding was essentially a credit one with the appellant's oral evidence (see [25] above) needing to be evaluated in light of the police officer's 2004 note of the conversation with the appellant (see [25] above). It was well open to his Honour to act on the basis of the contemporaneous note rather than the oral evidence given over three years later. 41 The finding that there would have been some change in the performance of the appellant's vehicle which would have been noticed by him was challenged upon the basis that the primary judge referred to this being the effect of the evidence of both experts but, so the appellant submitted, that was not so. 42 I agree that this portion of the primary judge's reasoning overstates the evidence. Mr Griffiths, the appellant's expert, said that if the diesel fuel from the appellant's right side fuel tank dropped on to the road in front of his "drive tyres" (that is, those at the rear of the prime mover) there would have been a noticeable effect upon the performance of the vehicle. He did however say that there may not have been any noticeable loss of performance as the fuel might have been "thrown to the side", clear of the path of the appellant's truck's right side tyres (Report of 2 January 2008 p 3; Report of 8 May 2008 p 15). Mr Griffiths said in cross examination that "in the normal course of events" he would expect the relevant tyres to become coated with diesel oil sufficient to affect the performance of the vehicle but this does not put the point as highly as it is put by the primary judge who said that there "must have been some coating to" the appellant's tyres and that the appellant "must have observed more … in his vehicle's performance" than he was prepared to concede. 43 Similarly, the evidence of Mr Simpson, the respondent's expert, was not as strong on this point as suggested by the primary judge. His evidence in cross-examination included the following exchange: "Q. The coating that you've given evidence about, that you've assumed occurred, would be only, even on your assumption, a coating to the first of the off-side tyres, would it not? A. Would inevitably coat both to some extent, but certainly, the first one would get a real [bath]. Q. But you would still get drive from the second tyre, would you not? A. Yes. Q. And you'd get drive from the near-side tyres, would you not? A. Yes Q. Those factors may explain if the driver noticed nothing - why he didn't notice anything, do you agree? A. Yes". 44 In these circumstances I do not consider that his Honour's conclusion on this point can be sustained, as it does not appear to have been arrived at with a full appreciation of the evidence. 45 Nevertheless, the primary judge's ultimate conclusion that the appellant was negligent in not stopping to inspect his vehicle at an earlier point of time did not rely, in its principal expression (see [30] above), upon any noticeable loss of performance of the vehicle. Rather, the judge relied upon what he described as "such a loud noise and the feeling of a bump, which must have been underneath the vehicle". He said that he accepted the evidence of the respondent and other drivers that these circumstances would have caused "a proper and reasonable driver to stop at the first available opportunity to inspect the underside of his vehicle". 46 The evidence of the respondent and other drivers to which the primary judge referred was evidence of the respondent, Mr Birrell (who was travelling north on the evening in question) and Mr Bishop (who was travelling south just in front of the respondent's vehicle) as to what they, as truck drivers, would do if they heard a "bang" on the underside of their vehicle whilst driving on a bitumen road. His Honour considered the evidence to be opinion evidence which was rendered admissible by s 79(1) of the Evidence Act. That section states that "[i]f a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge". However, the evidence in question here did not in my view constitute evidence of any relevant opinion. It was simply evidence as to what other truck drivers, albeit experienced ones, would do in a particular situation, which did not in any event reflect the detail of the situation in which the appellant found himself. Moreover, the evidence was not of any practice in the truck driving industry which was contended to be relevant. 47 In these circumstances, it is necessary to disregard that evidence when considering the correctness of the primary judge's ultimate conclusions. 48 Nevertheless, the view I have arrived at is that the judge's conclusions were correct. That is not of course to say that every time the driver of a truck, or indeed any other motor vehicle, hears a noise of something hitting his or her vehicle whilst driving, the driver must stop and inspect the vehicle. Naturally, it depends upon the circumstances. The circumstances which lead me to conclude that in the present case the appellant should have stopped, as soon as he reasonably could, are as follows. 49 First, the appellant was driving a vehicle which, as the primary judge found, had vulnerable structures underneath it. As the judge said: "There are many components underneath a vehicle which could be damaged by an object being thrown up in the manner that the [appellant] felt and heard and a number of these would be capable of causing either damage to the mechanisms of the vehicle and hence spillage, steering loss, power loss or some other response in the vehicle that may cause danger to other road users". 50 His Honour later referred to the appellant being aware after he heard the impact noise that "there was a risk of damage under the body of his prime mover that could affect a range of different working parts of the truck from air supplies, oil supplies, sumps, driving mechanisms or other matters that may bring about leakage, erratic driving or damage to the vehicle that in turn may endanger other road users". 51 Secondly, the appellant heard a noise of something hitting his vehicle. The judge described it as "very loud". The appellant described it as a "pretty loud bang", causing him to jump. For the noise to startle the appellant in this fashion the volume of the noise must have been significant. Also, as the judge pointed out, the nature of the damage indicated that the noise must have been significant. 52 Thirdly, the appellant felt a bump. In addition to the basis of challenge referred to in [40] above, the appellant challenged the finding that he felt a bump by relying upon evidence which he contended indicated that, because of the object's velocity and the angles involved, it would not have been possible for the damage to have been inflicted by an object over which the appellant's front tyres had run, forcing the object upwards and into the underside of the vehicle. This challenge must in my view fail because the judge's finding as to a bump was not dependent upon a view that the appellant's wheels ran over an object. On the contrary he referred to the bump resulting "either [from] the prime mover going over an object or the object striking the fuel tank causing a bump like sensation" (emphasis added). As pointed out above, the finding that the appellant felt a bump was well supported by the contemporaneous record of the police officer to whom he spoke shortly after the accident (see [25] above), the police officer having recorded the appellant as saying that he "Felt a Bump". 53 Fourthly, when it was put to the appellant in cross-examination that a prudent driver would have stopped a long time before the appellant did, the appellant volunteered: "I would have stopped if I had have thought it was damage to the underside of the truck, not [by a] rock to the side of the truck". This was a recognition of the vulnerability of the structures under the truck to damage in a way that might endanger the appellant, his truck or other road users. Although in his evidence given at the hearing in 2008, the appellant asserted that he had thought at the time of the accident in 2004 that the noise came from the side rather than the underside of the truck, the primary judge held that the noise must have come from underneath the vehicle. This was consistent with a statement of the appellant dated 24 October 2004 which said: "I heard and felt what I thought was a rock or similar hit the underside of the truck", without any suggestion in the statement that the appellant thought that the noise came from the side rather than the underside of the truck. Later in the statement he expressly said that he "heard something hit the underside". Whilst the statement was not signed by the appellant, there was evidence from the police officer who interviewed him, and prepared the statement, that the statement was read to the appellant over the telephone and that the appellant did not suggest that any changes needed to be made to it. 54 Fifthly, when the appellant heard reports on his radio of the respondent's accident and the slipperiness of the road at that location, he stopped his vehicle as soon as he was able and checked it for leakage. It was leakage of oil from the vehicle's sump for which he checked because he had understood a radio message which he had heard to refer to "oil", rather than diesel fuel, on the road. Nevertheless, the fact that when he heard the message, as he said in evidence, "he remembered the bang on the side of the truck" and thought that he should find somewhere to stop and make sure "my sump wasn't leaking and it wasn't my oil" is an indication that he thought that it was a realistic possibility that the noise he heard, and the bump he felt might have caused his vehicle to leak oil, or a similar slippery substance, on to the road. 55 Finally, in considering how a reasonable person in the position of the appellant would have responded to what occurred, it is relevant to note that there was no consideration, other than one of the limited inconvenience of breaking his journey and getting out of his vehicle in the rain, which pointed against the appellant stopping to check the condition of the vehicle. As the judge held, there were reasonably proximate places where the appellant could have stopped. The appellant has not shown that the judge was in error in that respect. The fact that Mr Bishop was able to stop his vehicle with no apparent difficulties at the location 300 metres past the site of the accident was compelling evidence in support of the finding.

Causation 56 The appellant's primary argument on causation was that the time which elapsed between the commencement of the loss of diesel oil by his vehicle and the respondent's accident was "a matter of seconds or at most a minute". The shortness of this time, it was argued, deprived the appellant's allegedly negligent failure to stop earlier than he did of any causative significance. The appellant accepted, as I consider was well warranted by the evidence, that if the time gap was five minutes or more, his failure to stop would, subject to his other arguments on causation to which I refer below, have had causative significance. 57 To support the proposition that there was only a very short time gap between the first spillage of diesel oil and the accident, the appellant submitted that there was a flow of traffic on the Pacific Highway at the time and that if there had been any significantly greater gap, other vehicles would have skidded on the oil and crashed before the respondent's vehicle did so. However, in my view this proposition is not sound. First, it is not by any means clear that there could not have been a gap of some minutes, even five or more, between vehicles travelling south on the highway. The evidence as to traffic flow did not rise higher than the appellant's evidence that there were "half a dozen vehicles every now and again". 58 Secondly, there is no basis for concluding that any vehicle travelling over the oil would necessarily have crashed or at least, if it skidded, that its driver would immediately have reported the incident. For example, it is known from the evidence that Mr Bishop, whose vehicle was just in front of that of the respondent, and skidded, managed to regain control and that Mr Birrell, who was travelling north and whose vehicle skidded on what was presumably diesel oil from the appellant's vehicle (which may not have been as extensive as that upon which the respondent's and Mr Bishop's vehicles skidded) also regained control. Further, it is not apparent from the evidence that Mr Birrell reported the difficulty he encountered. Moreover, if non-truck motor vehicles slipped on the oil, it may well be that they might not have reported the occurrence, if at all, until sometime later, the probabilities being against them having, as the truck drivers had, two-way radios. 59 Pointing in the other direction, and strongly supporting the primary judge's conclusion that there was a period of six to nine minutes between the first spillage of the diesel fuel oil and the respondent's accident is the fact that the appellant had his two-way radio turned on but did not hear any report of the respondent's collision, or a hazard on the road, until he had at least reached the town of Macksville which was about 8 kilometres past the point of first spillage. 60 Although the appellant disputed it, the appellant's evidence of hearing reports of the respondent's accident and the hazardous state of the road at that point was consistent with him hearing, when in or beyond Macksville, the reports over the radio of Mr Bishop who observed the respondent's accident. The appellant's recollection was that the first report he heard of the accident was accompanied by a reference to "oil" on the road. Mr Bishop's account of his virtually immediate report of the accident (he having witnessed it) was that he referred to the road being "slippery". I do not consider that any significance can be attached to this difference in terminology. First, the witnesses were giving evidence over three years after the events occurred. Secondly, as the appellant had his radio turned on during his journey, the first report he heard of the accident must have been that from Mr Bishop, or at substantially the same time from someone else, as the accident occurred in Mr Bishop's sight and mid-way through his message. 61 A further argument on causation put by the appellant was that Imbree v McNeilly indicated, assuming all other matters against the appellant, that the respondent's case against him failed because the appellant did not have any obligation to use his radio to give a warning. This is answered by the discussion of Imbree in [35] above in the context of breach. 62 Additionally, as to causation, the appellant argued that because of his unfamiliarity with the area, the appellant would have had difficulty in explaining on the radio where the road hazard caused by leaking diesel fuel was. However not long before the commencement of the diesel fuel spillage, the appellant had taken a rest stop (see [23] above). There is no basis for concluding that he could not have given an approximate location by reference to the time travelled since that stop. In any event, the point was not one raised before the primary judge, as a result of which no relevant finding was made. In these circumstances, the appellant should not be permitted to raise the point on appeal. 63 In summary, the primary judge's conclusions as to causation have not been shown to be erroneous. On the judge's findings there was between six and nine minutes between the commencement of the diesel oil spillage and the accident and that constituted sufficient time for the appellant to stop, at least at the location identified in the evidence 800 metres further on, ascertain that his vehicle was leaking fuel and radio a warning. 64 I should note in conclusion that it was contended in oral argument on the appeal that it had not been shown that the respondent would have heard the warning and acted upon it in such a way as to avoid the crash which he had. This argument was not put at first instance, there was therefore no finding by the judge in connection with it. Further, the point was not raised in the original or amended Notice of Appeal and was not dealt with in the appellant's written submissions. In these circumstances, the argument should not be entertained.

Damages - Future Economic Loss 65 The primary judge's award of damages was based upon a future economic loss represented by a diminution of earnings in the net sum of $450 per week. The respondent's net pre-accident income was $1,028 per week. From the middle of 2007 he was earning $408 net per week but working fewer than 40 hours per week. 66 The expert called by the appellant on this issue, Associate Professor Jones, was of the view that whilst the respondent would not be capable of returning to his employment as a truck driver, because of his physical and psychological problems resulting from the accident, it would be appropriate for the respondent to work in the trucking industry as a manager and that, if he were not successful in doing that, he could still work as a delivery driver or courier. The primary judge however took the view that this evidence as to the respondent continuing to drive did not "deal with the psychological matters that the [respondent] has in relation to traffic". His Honour thought that the respondent was unlikely to obtain any managerial position within the trucking industry but that he was capable of working more hours than was then the case. As a result, instead of allowing economic loss of net $620 per week as claimed by the respondent (the difference between the pre-accident net income of $1,028 per week and the then current net income of $408 per week), his Honour allowed $450 net per week. 67 In submissions on appeal, the appellant relied upon the evidence of Associate Professor Jones and a Job Search Matches Report suggesting that the respondent should be able to earn a net income of $692 per week resulting, after allowance for inflation, in a net loss per week of $325. 68 In my view, the appellant's submissions should be rejected. Those submissions rely upon the evidence of Associate Professor Jones but, as his Honour pointed out, that evidence took no account of the psychological disabilities which the respondent came to suffer as a result of the accident. The primary judge weighed the competing considerations and has not in my view been shown to be in error.

Proposed Orders 69 For the reasons I have given above, I propose that the appeal be dismissed with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(Supreme Court Act 1970(NSW)

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