Prospect v/s probability – the vexing question of causation

26 May 2009 Topics: Insurance

Dominello v Dominello & Anor; Dominello v The Nominal Defendant & Anor [2009] 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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