Dominello v Nominal Defendant  NSWCA 95
Beazley, McFarlane JJA and Hodgson AJA
- Where a driver loses control of a vehicle on a slippery road,
liability may not be established even where the driver was
traveling at an excessive speed. Liability may be avoided if the
evidence shows that the defendant would have lost control even if
he or she were driving at a reasonable speed for the prevailing
- The Nominal Defendant may be liable for injury caused by fuel
left on the surface of the road where the only reasonable inference
from the circumstances is that the fuel spill was caused by
circumstances which involved negligence by the owner or driver of
the unidentified vehicle.
- The failure to properly replace a fuel cap constitutes negligence "in the driving of the vehicle" and also constitutes "a defect in the vehicle".
The NSW Court of Appeal handed down its decision in Dominello v Nominal Defendant on 8 May 2009.
On 3 July 2000, the plaintiff was a passenger in a Toyota Hiace van driven by her husband, the first defendant, which was travelling along the Pacific Highway south of Grafton. The first defendant's vehicle ran off the road and hit a tree, causing the plaintiff severe injury.
The plaintiff sued both the first defendant and the Nominal Defendant.
The accident occurred on a downhill, left hand curve, when the first defendant lost control of the van. The first defendant was hauling a box trailer. He was driving at 100 kph, in accordance with the speed limit, but contrary to an advisory sign suggesting that 85 kph was a safe speed for the bend. The road was wet as a consequence of light rain.
A finding was made by the trial judge that diesel fuel had been spilt on the south-bound lane. The plaintiff alleged that the diesel spilled from an unidentified heavy truck because a cap on it fuel tank had not been properly replaced.
At first instance, damages were assessed at $2,775,035, which was not challenged on appeal.
Judgment was entered in favour of the plaintiff against the first defendant. The trial judge found that a driver exercising reasonable care would have maintained a speed of 75 to 80 kph in the prevailing circumstances.
The plaintiff's cause of action against the Nominal Defendant was dismissed. The trial judge held that the means by which the plaintiff argued that the diesel fuel came to be on the road was but one of many ways this may have occurred, with or without negligence.
The first defendant appealed from the finding that he was negligent. The plaintiff appealed from the finding that the Nominal Defendant was not liable. The Nominal Defendant filed a Notice of Contention placing in issue whether the negligent failure to secure a fuel cap fell within the statutory CTP indemnity.
Court of Appeal
Liability of Driver
The leading Judgment in respect of the first defendant's liability was delivered by McFarlane JA, with whom Beazley JA agreed. Hodgson JA came to the same conclusion as the majority, but for different reasons.
Justice McFarlane accepted the trial judge's findings that a speed of 100 kph was excessive for the downhill bend, given that he was hauling a box trailer and the road was damp.
However, at paragraphs 34 to 36, McFarlane JA held that the trial judge erred in finding that the first defendant could have regained control of his vehicle – after losing control on the diesel – if he we driving at 75 to 80 kph:
"34 In these circumstances, the plaintiff's claim against the first defendant must fail because she did not establish, that on the balance of probabilities, that the first defendant would have been able to regain control of his vehicle if he had been travelling at what was found to be a reasonable speed (see also the recent decisions in Dunleavy v Peak  NSWCA 72 and Gett v Tabet  NSWCA 76 at [364 – 389]). There was a prospect that at that lower speed he could have done so, and thereby avoided the accident, but that prospect is not sufficient to show that the increased risk created by his driving at an excessive speed materially contributed to the accident. The position would have been otherwise if the primary judge's finding that it is likely that at the lower speed the first defendant would have regained control could have been supported.
"35 My conclusion is consistent with the decision in Chappel v Hart in which it was held, by majority, that a doctor's negligent failure to advise a patient about the possible risks of surgery materially contributed to the injury suffered by the patient during the operation the doctor performed.
"36 It was clear on the facts of the case that, on the balance of probabilities, the patient would not have suffered the injury if the required advice had been given because, if the advice had been given, the surgery would either not have been performed at all or would have been performed by a more experienced surgeon. In the hands of a more experienced surgeon the plaintiff would probably not have suffered the injury in question. Each of the members of the majority indicated this to be the case (see Gaudron J at , Gummow J at  and Kirby J at ). In the present case, there was only a prospect, and not a probability, that if the first defendant had not been negligent, the accident would have been avoided."
Given this reasoning, the Court of Appeal held that the trial judge erred in finding the first defendant liable.
Liability of Nominal Defendant
The leading Judgment on the issue of the Nominal Defendant's liability was delivered by Handley AJA, with whom Beazley and McFarlane JJA agreed.
From paragraphs 87 to 91, Handley AJA held that the only reasonable inference which could be drawn from the available evidence was that diesel was spilled on the road through the mechanism argued by the plaintiff; namely, a loose fuel cap.
"87 In my judgment alternative hypotheses that the
spill came from a 4WD, an industrial tanker, or from a sudden
rupture or weld failure on a fuel tank are either not open on the
evidence or are highly improbable.
"88 The remaining inference, not excluded by the
evidence, is that the spillage came from the failure of a refueller
to replace or properly replace the cap on the diesel tank of a
heavy vehicle. The Nominal Defendant could only be liable if the
refueller was a driver. Contrary to the Judge's view (Red 69)
it would not matter if this was a previous driver. It would matter
if the refueller was someone other than a driver.
"89 Refuelling at Grafton at that hour of the night
must have been done by the driver at a self-service outlet. The
possibility that the spill at that hour came from an industrial
tanker can be discounted for the reasons already given. The
possibility that the absent or badly fitted cap was the fault of a
refueller in Brisbane, other than a driver, can also be discounted
because the fuel in the tanks would have been reduced to a safe
level by prior spillage and normal consumption long before this
"90 This means that the remaining hypothesis contended
for by the plaintiff is more probable than the others, collectively
"91 The presence of the spill on the first significant
downhill curve south of Grafton and the absence of a similar
spillage on the previous 16 kms, or on the next 20 kms to the
south, or on the steep section of the Highway north of Grafton
leads to the inference that something happened in Grafton.
Something that caused a fuel spill on this reverse bend where the
super elevation, first to the right, and then to the left (Blue 40)
would cause the fuel to slosh about in the tank."
In respect of the Nominal Defendant's Notice of Contention, Handley JA held that the injury caused by the failure to secure the petrol cap fell within the scope of the CTP indemnity contemplated by the Motor Accidents Compensation Act 1999. At paragraphs 102 and 103, his Honour held that the injury was either caused during the driving of the vehicle or as result of a defect in the vehicle.
"102 On the findings proposed these requirements are
satisfied. The inferred fault is that of the driver of the
unidentified vehicle and it occurred in the use of the vehicle.
Refuelling a vehicle, which enables it to be driven, is part of its
maintenance, and part of its use. Although the vehicle is not being
driven while it is being refuelled, it is being used to receive and
hold the fuel just as it may be used to receive and hold chattels
or passengers. The plaintiff's injury was the result of the
driving of the unidentified vehicle, and caused when the driving
caused the spill. The injury was also caused by the driver's
fault during the driving when he failed to remember that he had not
replaced the fuel cap and stop his vehicle to do this.
"103 The injury was also caused by the driver's fault during the driving of the vehicle by a defect in the vehicle, its open fuel tank. The fuel cap is an important part of the vehicle because it can prevent loss of fuel by spillage and its contamination by airborne material. A vehicle without a fuel cap has a defect and it has another if an available fuel cap is not fitted, or not properly fitted."
As such, the Court of Appeal held that the trial judge erred in finding no liability in the Nominal Defendant.
The major point of interest in Dominello v Nominal Defendant is the finding that the Nominal Defendant may be liable for injury caused by a fuel spill even where there is no direct evidence as to what caused the fuel to come onto the road.
In the previous decision of Johnson v Nominal Defendant  NSWCA 153, the Court of Appeal stressed that it could not be assumed that a fuel spill was caused by the negligence of the owner or driver of a motor vehicle. Without evidence, a range of other possible causes could be envisaged including that a fuel pipe burst without warning and without negligence or that the spill was caused by the negligence of a person other than the owner of driver of the vehicle, such as a mechanic or a petrol station attendant.
Whilst Johnson v Nominal Defendant does not appear to have been analysed by the Court of Appeal in Dominello, the same principles were applied.
The outcome appears to have been different because the plaintiff presented sufficient evidence to establish that the most probable cause of the spill was that the diesel sloshed through an open tank whilst the truck negotiated a downhill, bending road and that it was more likely than not that the driver of the vehicle failed to secure the fuel cap when he refilled the vehicle at Grafton.
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