Dominello v Dominello & Anor; Dominello v The Nominal
Defendant & Anor  NSWCA 95
This recent NSW Court of Appeal decision is a good example of
where a prospect of an occurrence can be mistakenly elevated to a
contributory cause of it.
The claimant passenger sought damages (agreed at almost $2.8M)
against her husband and The Nominal Defendant arising from a single
vehicle accident in July 2000 near Grafton. The claimant's
husband lost control of his heavily laden van and trailer when it
hit a large oil spill left on the road by an unidentified vehicle.
The primary judge found that the claimant's husband was
travelling at 90 km/h or above on a 100 km/h roadway and that speed
combined with the oil spill caused the accident. He found against
the husband but not against the Nominal Defendant, the latter
verdict based on an erroneous interpretation of the Motor
Accidents Compensation Act 1999 (NSW).
Just prior to the accident scene the claimant's husband had
passed an 85 km/h advisory sign. After the accident the drivers of
two other vehicles travelling at a lower speed had also momentarily
lost control of their vehicles when they hit the oil spill but were
able to regain control.
By a 2/1 majority the court found that the driving of the
husband's vehicle in excess of 85 km/h constituted a breach of
duty of care. That result was dictated by the road conditions (the
road was otherwise wet and dark and had a curve in it) irrespective
of the presence of the oil spill. The question for determination
was whether that breach caused the accident.
The majority found that in combination, the excessive speed and
the oil spill caused or materially contributed to the accident and
if one factor had been absent the accident would not have occurred.
The court accepted that there was a prospect that, had the husband
been driving at 85 km/h or below, the accident may not have
occurred. However, that prospect was not sufficient to prove on the
balance of probabilities that the excessive speed materially
contributed or caused the accident. The excessive speed merely
heightened the risk of an injury. The court found that the evidence
of the later slower drivers, who were able to regain control over
their vehicles, was not a reliable guide as to whether the husband
could have regained control over his vehicle at a lower speed. If
followed that the husband was not liable for the accident.
The court also reversed a finding of the primary judge who had
found in favour of the Nominal Defendant at first instance. After
debating the cause of the oil spill, the court found that the
probable inference was that it came from a large truck as a result
of the driver of that truck failing to replace the fuel cap at the
last refuelling stop and thereafter failing to remember he had done
so and stop his vehicle to do this. It is submitted that the same
result would be reached if the accident had occurred in Queensland.
There was an alternative finding of negligence made against the
Nominal Defendant in respect of a defect in the vehicle which
finding was dictated by the NSW legislation and would not equally
apply in Queensland.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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