Dominello v Dominello & Anor; Dominello v The Nominal Defendant & Anor [2009] NSWCA 95

Dominello v Dominello & Anor; Dominello v The Nominal Defendant & Anor [2009] NSWCA 95

The plaintiff did not prove on the balance of probabilities that Joseph Dominello would have regained control of the van and avoided the accident had he been travelling at 75 to 80 kph, so the increased risk from his speed was insufficient to establish causation against him. The evidence did, however, make it more probable than not that the diesel spill came from a full fuel tank on an unidentified heavy truck with an open or improperly capped filler caused by the driver's negligence after refuelling at Grafton. That negligence occurred in the use or maintenance of the unidentified vehicle, and the open fuel tank was a defect and the predominant and immediate cause of the spill and injury...

Jurisdiction
Australia
Judgment Date
08 May 2009
Procedural Posture
Appeals in Motor Accident Negligence Damages Proceedings / Court of Appeal From District Court Judgment of Balla DCJ Dated 13 December 2007
Outcome
Both appeals allowed. Judgment entered for Kathleen Dominello against the Nominal Defendant for $2,775,035 with costs, and judgment entered for Joseph Dominello with costs; cross claims dismissed with no orders as to costs.
Legal Topics
['road Accident Liability' 'causation' 'nominal Defendant Liability for Unidentified Motor Vehicle' 'diesel Oil Spill on Road' 'advisory Speed Signs' 'proof on Balance of Probabilities' 'costs Orders']
['torts' 'motor Accidents' 'negligence' 'civil Procedure'] ['road Accident Liability' 'causation' 'nominal Defendant Liability for Unidentified Motor Vehicle' 'diesel Oil Spill on Road' 'advisory Speed Signs' 'proof on Balance of Probabilities' 'costs Orders']

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Procedural Posture

Appeals in Motor Accident Negligence Damages Proceedings / Court of Appeal From District Court Judgment of Balla DCJ Dated 13 December 2007

Legal Issues

  1. 1 ["Whether Joseph Dominello breached his duty of care by driving at an excessive speed in the conditions and whether any breach caused or materially contributed to Kathleen Dominello's injuries." 'Whether the diesel spill was more probably caused by the negligence of the driver of an unidentified heavy vehicle in failing to replace or properly replace a fuel cap after refuelling.' "Whether Kathleen Dominello's injuries fell within s 3 and s 34 of the Motor Accidents Compensation Act 1999 so as to make the Nominal Defendant liable." 'Whether the District Court judgment in favour of the Nominal Defendant and against Joseph Dominello should be set aside.']

Ratio Decidendi

The plaintiff did not prove on the balance of probabilities that Joseph Dominello would have regained control of the van and avoided the accident had he been travelling at 75 to 80 kph, so the increased risk from his speed was insufficient to establish causation against him. The evidence did, however, make it more probable than not that the diesel spill came from a full fuel tank on an unidentified heavy truck with an open or improperly capped filler caused by the driver's negligence after refuelling at Grafton. That negligence occurred in the use or maintenance of the unidentified vehicle, and the open fuel tank was a defect and the predominant and immediate cause of the spill and injury...

Court Disposition

Both appeals allowed. Judgment entered for Kathleen Dominello against the Nominal Defendant for $2,775,035 with costs, and judgment entered for Joseph Dominello with costs; cross claims dismissed with no orders as to costs.

Orders

  • ['No 40045/2008: Appeal allowed with costs against the first respondent, the Nominal Defendant. No order as to the costs of the second respondent.' 'No 40045/2008: Judgment of the District Court in favour of the Nominal Defendant with costs set aside.' 'No 40045/2008: In lieu thereof judgment for the Plaintiff...