In road accident cases involving concurrent causes (driver speed and unforeseeable road hazard), the plaintiff must prove on the balance of probabilities that the accident would have been avoided at a reasonable speed; proof that excessive speed increased the risk of injury is insufficient to establish material contribution to the injury. An uncapped fuel tank on a heavy vehicle constitutes a 'defect in the vehicle' for the purposes of s 3 of the Motor Accidents Compensation Act 1999 (NSW), and refuelling constitutes 'maintenance' and thus 'use or operation' of the vehicle.
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