Chen v Caldieraro  NSWSC 1409
|Judgment date:||22 November 2012|
- An accident occurring on private property, notwithstanding the absence of gates, barrier or signs, does not constitute a "road" within the meaning in s 3 of the Motor Accidents Compensation Act 1999 (the Act). A "road" is considered to be "open to or used by the public".
- When alleging a defect in the vehicle, the onus is on the plaintiff to establish that the injury was, on the balance of probabilities, caused by a defect.
On 10 August 2009, the plaintiff was involved in an accident on a farm at Boambee, near Coffs Harbour. The plaintiff had been driving a utility vehicle along a gravel track and exited the vehicle. Upon disembarking, the vehicle rolled down an embankment and trapped the plaintiff underneath it. As a result of the accident, the plaintiff suffered severe spinal injuries. The vehicle was not registered or insured.
The plaintiff claimed that the vehicle had a defective handbrake, footbrake and tyres. The first defendant and the Nominal Defendant asserted that the accident occurred due to the failure of the plaintiff to apply the vehicle's handbrake before alighting from it.
There was also a dispute as to whether the accident occurred on a "road" within the statutory meaning in the Act.
Was the vehicle defective?
The first defendant purchased the vehicle in about 2004. It was registered until 17 July 2007, but was not renewed after that time as it was only used on the farm where the accident occurred. The vehicle had not been serviced since 2006.
On the date of the accident, a police officer and a WorkCover inspector made a general inspection of the vehicle. The handbrake and the footbrake were tested and appeared in working order. The photographs taken on the date of the accident, together with observations made by the WorkCover inspector, demonstrated that the plaintiff's recollection that all the tyres on the vehicle lacked tread was incorrect.
The first defendant sold the vehicle for scrap metal in February 2010. The plaintiff alleged that the first defendant destroyed critical evidence, which prevented experts from examining the vehicle. Justice Price found that the first defendant had no reason to destroy the vehicle and the police and WorkCover inspections of the vehicle on the day of the accident did not reveal any defects in its braking systems. In addition, the first defendant did not know at the time that he sold the vehicle that the plaintiff intended to institute legal proceedings against him.
Neither of the tests carried out on the vehicle by the police or WorkCover were thorough. In addition, the testing of the brakes was carried out at the place the vehicle came to rest, rather than at the same site that the plaintiff parked the vehicle. Justice Price accepted their observations as forming part of the circumstantial evidence, which was considered in combination with the following circumstances:
- Neither the plaintiff nor the first defendant had difficulty with the handbrake or footbrake of the vehicle prior to the accident;
- The first defendant was able to lift the front of the vehicle 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
- When the first defendant looked into the vehicle for the first time after the accident, he observed that the handbrake had not been engaged and the vehicle was not in gear.
On the balance of the evidence, Justice Price found that the plaintiff's injury was caused by his own failure to apply the handbrake and to leave the vehicle in neutral before disembarking.
Did the accident occur "on a road"?
The plaintiff's accident occurred on the gravel track which was wholly within the farm, which was private property owned by the first defendant.
Other than the first defendant and his family, the only persons who came on the farm were the plaintiff (who had a licence to use the greenhouses) and drivers who were delivering sawdust to the farm under commercial arrangements.
Neither the first defendant, nor his family nor the plaintiff sold farm produce to the public at the farm. Accordingly, there was no invitation to members of the public to purchase produce from the farm or to enter the farm for any other reason. Members of the public did not enter the farm as trespassers and did not use the gravel track or the sealed access road within the farm's boundary.
Despite the fact that there were no fences, gates, other barriers or signs that restricted or forbade entry to the farm or to the gravel track, it was concluded that the accident did not occur on a "road" within the statutory meaning in the Act.
When there is an allegation regarding a defective vehicle, it is important to inform the insured to not dispose of the subject vehicle in the event expert examination is required.
As the merits of this case were based on its factual circumstances, when considering whether an accident occurred on a "road", the following checklist may assist:
- Did the accident occur within the boundaries of private property?
- Was there an invitation to members of the public to enter the property?
- Do members of the public trespass on the property and/or use the subject road?
- Whether or not the property is fenced is not wholly determinative in a finding that a property is not open to the public.
1 Price J
Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.