Dear Colleagues;
An interesting decision from the NSW Court of Appeal in Sullivan v Stefanidi [2009] NSWCA 313 (2 October 2009) http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2009/313.html. A truck driver (A) hears a noise which implies his truck has been hit by a rock. He decides to carry on anyway and not until 30 mins down the road does he realise he has been leaking fuel at a great rate. In the meantime another truck driver (B), coming from the same direction, skids on the spilled fuel and is involved in a serious accident. Does the injured truck driver have an action in negligence against the first one?
Surprisingly, to my mind, the CA says yes. Driver A should have stopped to check the result of the impact; if he did, the evidence showed that he would have noticed the leak; he had a two-way radio by which he could then have alerted other truck drivers; the trial judge obviously accepted (though interestingly even this was not clear- see [13]) that if he had done so, driver B would have heard the radio message and could have done something to avoid skidding on the spill.
The major problem with the decision, which for some reason is not even discussed in the judgment, is the question of duty of care. It may be that everyone assumed that road users owe other road users a duty of care not to cause personal injury. But of course that general duty has to be qualified by other principles, and a major principle is that the law does not usually impose a duty in relation to "omissions" as opposed to positive acts.
The difference between the 2 seems to be the core of the issue here- no doubt if the driver had consciously dumped a load of fuel on the road he could not avoid responsibility by claiming it was merely an "omission" to clean it up. But the tricky question here is- suppose you are not actually aware that you have created a risk to other drivers? Is it an act or omission to make inquiries about the existence of a risk?
I suppose the logic of the CA decision is this: if you negligently create a risk to other drivers, you have a duty to make a reasonable response. Your response to the risk will vary with the circumstances. But if you already have a means of warning about the risk to a class of other road users (here other truck drivers with the right type of radio communications) then you are obliged to (1) take reasonable care to determine whether a possible risk has been created; (2) give a warning to those you are reasonably able to warn.
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931