Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Thornton v Sweeney [2011] NSWCA 244
• Hearing dates: 27 June, 1 July 2011
• Decision date: 23 August 2011
• Before: Campbell JA at [1], Sackville AJA at [2], Tobias AJA at [162]

Decision

1.Appeal allowed.

2.Set aside orders 1, 2 and 3 made by Fullerton J on 10 September 2010 and entered on 8 October 2010.

3.In place of the orders referred to in order 2, make the following orders:

1)Verdict for the defendant.

2)The plaintiff pay the defendant's costs of the proceedings.

4.The respondent pay the appellant's costs of the appeal but should have a certificate under the Suitors' Fund Act 1951.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - negligence - motor vehicle accident - learner driver - content of duty of care owed by voluntary supervisor to learner driver - vehicle travelling well under speed limit - whether supervisor's failure to warn driver to reduce speed constituted breach of the duty of care.; APPEAL - whether primary judge made a finding as to speed of motor vehicle on entering the bend - whether primary judge erred in the finding on location of initial slip of vehicle - whether scope of duty correctly stated - whether primary judge's finding of breach of supervisor's duty was correct - whether primary judge erred in not finding that vehicle was travelling at speed significantly greater than 70 kph on entering the bend.
• Legislation Cited: Civil Liability Act 2002; Driving Instructors Act 1992; Evidence Act 1995; Driving Instructors Regulation 2003; Driving Instructors Regulation 2009; Road Rules 2008; Road Transport (Driver Licensing) Regulation 1999; Road Transport (Driver Licensing) Regulation 2008; Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999
• Cases Cited: Chang v Chang (1974) 48 ALJR 362; Cook v Cook [1986] HCA 73; 162 CLR 376; Imbree v McNeilly [2006] NSWSC 680; Imbree v McNeilly [2008] HCA 40; 236 CLR 510; McNeilly v Imbree [2007] NSWCA 156; 47 MVR 536; Neindorf v Junkovic [2005] HCA 75; 222 ALR 631; Ricketts v Laws (1988) 14 NSWLR 311
• Category: Principal judgment
• Parties: Andrew John Thornton (Appellant); Madeleine Louise Sweeney bhnf Norma Bell (Respondent)
• Representation: R R Stitt QC, D M Wilson and C Gleeson (Appellant); B M Toomey QC and P Frame (Respondent); Hunt & Hunt (Appellant); Matthews Folbigg Lawyers (Respondent)
• File Number(s): CA 2008/289516-002
• Publication restriction: Nil

Decision under appeal

• Citation: Sweeney v Thornton [2010] NSWSC 1030
• Date of Decision: 2010-09-10 00:00:00
• Before: Fullerton J
• File Number(s): SC 2008/20362

Judgment

1 CAMPBELL JA : I agree with Sackville AJA.

2 SACKVILLE AJA : This is an appeal from a judgment on liability in favour of the respondent, who suffered serious injuries in a single vehicle accident. The respondent was a learner driver at the time of the accident. She was being supervised by the appellant, whose vehicle she was driving. Because of the respondent's disabilities, she brought the proceedings by her next friend.

3 The primary Judge (Fullerton J) found that the respondent's injuries were caused by the appellant's negligence and that, accordingly, the appellant was liable in damages. Her Honour also found that the respondent was not contributorily negligent. Since damages were agreed, her Honour entered judgment for the respondent in the agreed amount of $5 million.

ISSUES ON APPEAL

4 The accident occurred at about 1.15 pm on Saturday, 27 August 2005, as the respondent was driving in an easterly direction through a bend on a secondary road, the Wallanbah Road, at a point between Tuncurry on the mid-north coast of New South Wales, and Firefly, a small inland town. It was not raining at the time, but the roadway was damp or wet. The vehicle, a 1991 Toyota Camry automatic station wagon, moved initially to the right and then " fishtailed " along the road before leaving the roadway on the left hand side and colliding with a tree.

5 The respondent was sixteen and a half years old when the accident occurred. The appellant had turned 21 a month earlier and held an unrestricted driver's licence. The respondent had obtained her learner's permit in February 2005, six months before the accident.

6 The primary Judge approached the case on the basis that the respondent was driving the appellant's vehicle, at about 70 kph as she attempted to traverse the bend. Her Honour did so because she could not be satisfied on the evidence that the vehicle was travelling through the bend at a speed greater than 70 kph although she considered (at [80]) that it was " possible " that the speed was greater.

7 On this basis, her Honour found (at [84]) that the respondent had:

"approached and entered the bend at a speed that was not reasonable or safe having regard to her level of experience and the wet condition of the roadway. That being the case, and where there is no evidence that [the appellant] took any steps at all to instruct or direct or to guide her as to an appropriate speed to enter and negotiate the bend in the wet (sufficiently early or at all), I am satisfied that he breached his duty of care entitling the [respondent] to a verdict in her favour."

8 The issues on the appeal identified in the parties' written submissions underwent modification as the argument proceeded over the two (separated) days of the hearing. The appellant's written submissions gave prominence to an argument that her Honour had erred in admitting what was described as " tendency evidence ". Although the argument was not abandoned, Mr Stitt QC, who appeared with Mr Wilson and Ms Gleeson for the appellant, chose not to develop the argument in his oral submissions.

9 Mr Toomey QC, who appeared with Mr Frame for the respondent, commenced his oral submissions by contending that the primary Judge should have found that the vehicle was travelling at a speed significantly greater than 70 kph when it entered the bend. This argument had neither been the subject of a notice of contention nor had it been foreshadowed in the respondent's written submissions. The position was regularised by the respondent being granted leave to file a notice of contention before commencement of the second day of the hearing. The grounds in the notice of contention included that:

• the primary Judge should have found that the vehicle was travelling at about 80 kph when its rear end moved to the right; and
• the increasing amplitude of the fishtailing (as described by an independent witness) was caused by the driver's over-steering corrections, rather than by acceleration as the primary Judge had found.

10 For reasons that will become apparent, the result of this appeal turns on whether her Honour erred in finding that she could not be satisfied that the vehicle entered and went through the bend at a speed greater than 70 kph.

BACKGROUND

11 The primary Judge made a number of findings on matters that were said to be either not in dispute between the parties or could be derived from unchallenged evidence. Not all of the matters recorded by her Honour can be so described. However, the background facts recorded below do not appear to have been in contest.

12 The respondent obtained her provisional learner's permit soon after her sixteenth birthday in February 2005. Between February 2005 and 27 August 2005 she drove for a total of about 28 hours under the supervision of licensed drivers, including three hours driving while being supervised by the appellant within a period of 12 hours prior the accident. The respondent's experience included five or six lessons under her father's supervision, the most recent of which had been two or three weeks before the accident.

13 On Friday, 26 August 2005, between 7.30 pm and 8.00 pm, the respondent and the appellant were with some friends at a hotel in Tuncurry. At some time before 2 am on the following morning, Saturday, 27 August 2005, the respondent drove the appellant's vehicle, under his supervision, to Firefly. They travelled some 35.5 kilometres along the Wallanbah Road to Firefly, a journey that took approximately one hour. Her Honour referred to this as the " first driving episode ".

14 Wallanbah Road is a typical secondary rural road. It is relatively flat and open. Its average width is about 6.2 to 6.5 metres, sufficient for a single lane of traffic in each direction. The Wallanbah Road has no marked centre line on its surface.

15 At Firefly, the respondent and the appellant collected Ms Taylor, the appellant's girlfriend. The three of them then returned to Tuncurry along the Wallanbah Road, with the respondent again driving. Upon reaching Tuncurry, the respondent went to her boyfriend's flat and spent the remainder of the night there. The appellant and Ms Taylor went to his flat in Tuncurry. They stayed up to watch the sunrise, which occurred at 6.13 am.

16 Later that morning, commencing at about 11.30 am, the respondent again drove the appellant's vehicle under his supervision to Firefly along the Wallanbah Road. Ms Taylor accompanied them as a passenger. The purpose of the journey was to enable Ms Taylor to collect some clothes from her home. The primary Judge referred to this journey as the "second driving episode ".

17 After collecting Ms Taylor's clothes, the respondent drove the appellant's vehicle, again under his supervision, from Firefly towards Tuncurry. The respondent proceeded along Wallanbah Road in an easterly direction. At a point about 1.2 kilometres west of the township of Dyers Crossing, the vehicle left the roadway and collided with a tree.

18 The speed limit on Wallanbah Road in the area of the accident was 100 kph. However, the holder of a learner driver's licence, such as the respondent, was subject under the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 to a speed limit of 80 kph. (The primary Judge referred to the Road Transport (Driver Licensing) Regulation 1999 ("Licensing Regulation") (which was replaced by the Road Transport (Driver Licensing) Regulation 2008 on 1 September 2008), but in fact the speed limit was imposed by cl 38(4) of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999, which was replaced by the Road Rules 2008 on 1 July 2008.)

19 The section of Wallanbah Road leading to the point where the accident occurred followed a curve to the left for vehicles travelling east. Naturally a left hand steering input was required to negotiate the bend, which was 70 metres in length and had a curve radius of 190 metres. Mr Keramidas, one of the experts, described the bend as consisting of a short, relatively straight transition section, a central section of 45 metres at a constant radius of 190 metres and a second short, relatively straight transition section leading out of the bend.

20 The apex of the bend was accepted to be half way along the bend - that is, 35 metres from the commencement and the end of the bend. Thirteen metres to the east of the apex (22 metres to the west of the end of the bend), there was a slight irregularity on the surface of the road caused by the construction or maintenance of a drain under the road. The irregularity was neither significant nor hazardous and would have been experienced, if at all, as a slight bump transmitting vibration through the vehicle's rear suspension.

21 A vehicle travelling between 70 to 80 kph would traverse the irregularity in 5/100 of a second. The irregularity was not severe enough for the surface of the tyre to leave the road surface but it had the potential to generate slip and, if that occurred, it would be experienced as the rear of the vehicle moving very slightly to the right. The maximum slip that could have been generated would occur close to where the exit spiral of the bend commenced, that is, where the curve radius of the bend flattened out.

22 Yaw marks were deposited on the road surface by the vehicle's tyres caused by its sideslip. They commenced 56 metres to the east of the end of the bend (78 metres from the surface irregularity). The yaw marks had a radius of 63 metres. It was common ground, based on expert evidence, that the vehicle moved at an average speed of about 70 kph through the yaw marks. The vehicle at this stage of its movement towards the tree had a slip angle of 11 degrees to the left such that there was no realistic prospect of a learner driver recovering control of the vehicle.

23 The diagram reproduced below was prepared by the appellant's senior counsel at the hearing of the appeal. It is not here reproduced at the same size as the original and does not plot the curvature of the bend. Nonetheless, it is a useful aide-memoire in that it records key points on the Wallanbah Road near the site of the accident.

24 The yaw marks left by the vehicle indicated a left steering input, but the evidence did not establish whether or not this was a continuation of the left steering action required to negotiate the bend.

25 At the time of the accident, although the road surface was damp or wet it was not actually raining. In the 24 hours to 9 am on 28 August 2005, 0.8 millimetres of rain were recorded at a point 5.2 kilometres from the accident site. At another official meteorological site, also 5.2 kilometres from the accident site, no rainfall had been recorded.

THE TRIAL

26 The trial occupied seven hearing days. Despite the length of the trial, none of the three persons in the vehicle at the time of the accident gave oral evidence of the circumstances leading up to it.

27 The respondent gave oral evidence but she was suffering from post-traumatic amnesia and had no recollection of the accident or of the events preceding it. Ms Taylor was not called by either party, but her statement to the investigating police officer, dated 7 September 2005, was tendered by the respondent. The statement was of little assistance on the issue of liability as Ms Taylor had no recall of the driving sequence prior to the accident.

The Appellant's Statement

28 The appellant also was not called as a witness at the trial. However, he gave a statement to the police, dated 21 September 2005, which the respondent tendered as part of her case The material passages of the appellant's statement are as follows:

"6. On Friday night the 26 th of August 2005, I was with Madeleine [the respondent] and another friend in the Tuncurry area. We decided to go out to Stevie-Lee TAYLOR's place at Firefly. We dropped off the other friend at my flat in Tuncurry. Madeleine asked me if it was okay for her to drive out to Firefly. I knew that Madeleine had a learner's permit as I'd seen it before when we were with a group of friends comparing licence photos. I had some old 'L' plates in the car and we put them on the car, both front and back. I think we left the flat sometime after midnight of the following morning, that is to say Saturday the 27 th of August.

7. That was the first time that Madeleine had driven my car. I knew she'd had her 'L's' for a while but I don't know how much experience she'd had. When we first got in the car outside my flat in Tuncurry I kept a close eye on her to see if she knew what she was doing. She started the car without any problem and adjusted the rear view mirror without prompting. She put her seat belt on and got ready to move off. At that stage she appeared to be competent to at least get the car moving without any real instruction.

8. She pulled out from the kerb safely. As the car was an automatic she was pretty smooth. There wasn't much traffic around at that time of the morning. She turned into Point Road without any problem; she seemed to be pretty competent behind the wheel. We turned onto Lakes Way and headed out of town and ... we turned left into Failford Road to head out to the highway to get to Nabiac. While we were driving there wasn't much that I had to point out to Madeleine. She was very cautious and attentive to what she was doing. She was maintaining a safe speed without me really having to remind her. From the way she was driving I was of the opinion that she had driven before. She wasn't overconfident in the way she was driving, she was really fairly safe.

9. We got out onto the highway and Madeleine's driving was the same, she was still being cautious and not overconfident. I recall she braked a bit hard at one point and I told her just to be a bit lighter on the pedal but I can't recall exactly where that was.

10. We got to Stevie-Lee's place at Firefly around two in the morning. Stevie-Lee travelled back into Tuncurry with us, she was in the back. The trip back into Tuncurry was the same as before. There were only a few minor things I'd have to point out but apart from that Madeleine was driving alright. In my opinion she was always driving within her capabilities.

...

14. Madeleine was driving; she appeared to be handling the car without any problems. I remember we came up to a left corner and Madeleine turned into it normally. As she came out of the corner I felt the back of the car move out very slightly to the right. It was about that time I became aware of a car coming in the opposite direction. It was on its correct side of the road and its position wasn't causing any problem, there was no real danger of us colliding with it at that point.

15. It wasn't a large movement in our car but I saw Madeleine start to correct the steering. I didn't think the movement in the car was enough to require much correction but I saw Madeleine turn the steering wheel too much to the right. The car started to overcorrect and I heard Madeleine say 'Oh shit'. I saw Madeleine start to turn the steering to the left again. I think we'd passed the oncoming car by that time. I had time to look first at the speedo and it was pointing to 70. I looked down at her feet and could see Madeleine lift off the accelerator at first then press it straight to the floor quite quickly. To me it appeared as though she had meant to apply the brake but had accidentally pressed the accelerator instead. I don't think I had time to say anything, it all happened very quickly.

16. The movement in our car was getting more exaggerated and I felt that Madeleine was losing control. I remember feeling the car turning around and leaving the road. I could hear the sound of the car going off the road and I think I closed my eyes. I felt a large impact and then we stopped. I remember feeling as if I was upside down."

29 The primary Judge noted (at [29]) that the appellant did not tell the police, nor was he apparently asked, whether he gave the respondent any instructions concerning speed on approach to or on entering the bend having regard to the wet conditions of the road surface. Nor was he asked whether the circumstances required, in his judgment, any particular warning in relation to speed generally or the speed on approach to the bend.

Mrs Fancourt's Evidence

30 The only eyewitness to the collision was Mrs Fancourt. She had lived at Firefly for a period of 18 months prior to the accident and had travelled the Wallanbah Road on a daily basis past the accident site. Mrs Fancourt's statement to the police, dated 7 September 2005, was admitted into evidence. Her account in that statement was as follows:

"3. Around one o'clock on Saturday the 27 th of August 2005 I was driving west along Wallanbah Road just out of Dyers Crossing. I was heading to my home address. At the time I was driving a dark blue Honda CRV and my thirteen year old son, Jonathan was in the front passenger's seat. At the time it wasn't raining but it had been earlier. The road was a bit damp; there weren't puddles on the road or anything. I didn't notice the road to be particularly slippery. The car I was driving is constant all-wheel drive.

4. As I came towards a right bend I saw a white station wagon come into view travelling in the opposite direction. I can't accurately estimate the distance but I'd say I was around thirty metres from the bend when I first saw the car. To me it looked to be travelling too fast to take the bend. I couldn't estimate what speed it was doing other than to say it looked like around 80 kilometres per hour.

5. As soon as I saw the car I could tell it wasn't under control. The car was swerving from side to side in sort of a fishtailing movement. I could see the car had 'L' plates on it. It looked as though the car was going to collide with me so I immediately started to brake and pull over the left to avoid being hit. I could see into the cabin of the car and could see a young girl was driving. I could clearly see her oversteering the car in a side to side motion. The fishtailing movement was getting more exaggerated and the car actually past [sic] me out of control. I was still pulling over and was almost stopped when I looked around. I could see the car going off the road and then it sort of flipped into a tree and stopped."

31 Mrs Fancourt gave oral evidence and was cross-examined. The primary Judge summarised Mrs Fancourt's evidence as follows:

"50. Consistent with her statement, she gave evidence that on the afternoon of 27 August 2005 she was driving in a westerly direction towards Firefly when she observed the vehicle driven by the [respondent] travelling in an easterly direction towards her. She said that from the time she first saw the vehicle approaching her it was already fishtailing out of control - in the sense that the rear of the vehicle was at an angle to the edge of the road - a movement which was becoming more exaggerated as the vehicle approached. She described the manner in which the [respondent] was controlling the car as 'steering madly'. In the witness box she demonstrated an arcing movement, with her hands positioned to simulate the [respondent's] hands on the steering wheel as it was swung left to right. She was not asked, and did [not] otherwise indicate, how many turns of the wheel (and associated manoeuvres of the rear of the vehicle to the left and the right) she witnessed as the car approached her and as it eventually passed her. ...

51 She gave evidence that the vehicle was 'about halfway' around the bend (which was a right hand bend from her perspective) when she observed it fishtailing out of control, as distinct from the vehicle being on or near the straight part of the road (which I take to mean either well short of the bend on approach to it or as the vehicle was exiting from the bend). She said in her statement that the vehicle looked to be travelling too fast to take the bend. She said that the particular bend was deceptive in that it appeared to be a gentle bend to the left (when travelling east - the direction the [respondent] was driving) but that once in the bend it is more difficult to negotiate than it appears. ...

52 She said that the speed of the vehicle remained fairly constant while she was watching it. She estimated the speed to be 'about 80 km per hour' although she conceded in cross-examination that there was a lack of precision in that estimate. On the other hand, it was not suggested to her in cross-examination that the vehicle was travelling at any lesser speed than 80 km per hour or by any particular measure. It was conceded by Mr Johnston [one of the experts] in cross-examination, and I accept, that accurately assessing the speed of an oncoming vehicle from a moving vehicle is a most difficult exercise."

The Experts

32 Four of the seven hearing days were devoted to the evidence of two experts. Mr Johnston, a consulting engineer with expertise in investigating motor vehicle accidents, prepared on behalf of the respondent two reports dated 4 March 2009 and 6 August 2009 respectively. Mr Johnston was cross-examined by Mr Stitt.

33 Mr Keramidas, an expert in traffic engineering and accident investigation techniques, prepared a report at the request of the appellant's representatives. His report, dated 22 May 2009, was admitted into evidence. Mr Keramidas was cross-examined by Mr Toomey, who appeared with Mr Frame for the appellant both at the trial and on the appeal.

34 During the trial, Mr Johnston and Mr Keramidas prepared a joint experts' report which was dated April 2010. (The hearing commenced on 14 April 2010 and the joint report was prepared following discussions held between the experts on 2, between 7 and 12, and 15 April 2010.) The joint report took the form of questions posed to the experts and their responses indicating the extent of agreement and disagreement.

35 The joint report included the following questions and responses.

"Q1. What was the probable speed of the vehicle as it entered the bend?

Response to Q1:

It is agreed that if the vehicle was under constant acceleration or coasting the speed on exit to the bend was less than or equal to 70 km/h. This relates to the speed on EXIT to the bend.

The experts note that Mr Johnston calculated an upper range of speed of about 90 km/h, based on braking from the corner. If the evidence is that braking did occur, then Mr Keramidas agrees with the calculations provided by Mr Johnston.

The speed on entry to the bend cannot be calculated without making additional assumptions about vehicle control through the bend. At the present time there is no basis to make assumptions in this regard.

Q2. Was that speed safe and reasonable in all of the circumstances? If not, why?

Response to Q2:

Assuming for the purposes of this question a speed of about 70 km/h, Mr Keramidas considers this speed to be safe and reasonable in all the circumstances, while Mr Johnston considers that in the context of a wet road and inexperienced learner driver this speed was not safe and reasonable in the circumstances.

Mr Keramidas is of the opinion that at a speed of 70 km/h the curve geometry should be able to comfortably sustain a vehicle's path for both experienced and inexperienced drivers.

Mr Johnston agrees that this speed was safe and reasonable for an experienced driver in both dry and wet conditions but was beginning to approach the comfort threshold for experienced drivers in wet conditions. Wet conditions coupled with an inexperienced learner provided no contingency for the learner to accommodate the steering and speed adjustments a learner is likely to attempt in negotiating such a curve. An experienced driver may drive this type of curve as a smooth arc at a constant speed, whereas a learner is likely to make several braking and steering adjustments, which when coupled with a speed close to the comfortable limit leave no contingency for these additional actions to be safely undertaken. It also limits the opportunity of the instructor to provide instruction or intervene if the learner has left no contingency in his speed selection.

Q3. What if anything should the supervising driver have done as the vehicle approached the curve in question?

Response to Q3:

In attempting to reach consensus in response to the above question (and others which follow), the two experts find that they hold diametrically opposed views on the function of a licensed driver accompanying a learner driver. While this is a definitional argument, each author's position is outlined below.

Mr Johnston is of the view that the relevant issue is not isolated to instruction on approach to this curve but the overall role of the supervisor in providing instruction to the learner for whom he [has] taken charge. The issue of speed control and speed choice is one of the fundamental learned aspects of driving especially in a rural environment where speed choice is dictated by environmental factors of both geometry and ambient conditions (in this case wet weather) as opposed to an urban environment where the basic speed limit sets the speed control for most situations other than typically intersections. An inexperienced driver who is given no guidance on speed control will by default assume their speed choice is appropriate and will gradually increase their speed in similar situations in the absence of guidance. It is therefore necessary for the supervisor to be constantly reinforcing speed choice decisions and in this particular instance should have asked the learner driver to slow down into this corner as 70 km/h on wet road in my opinion provided insufficient contingency to deal with potential situations that might arise as evidenced by this incident. If the speed was reduced and contingency was available to intervene this incident should have been avoided.

Research has shown that the most prominent errors by young novice driver's [sic] includes failing to make a proper visual search before turning across the path of opposing vehicles, not watching the car ahead, driving too fast for conditions and failing to adjust for wet road surfaces. The last two of these four points relates directly to this incident and are factors that should have been proactively monitored and addressed by the appointed supervisor.

Mr Keramidas makes the distinction between 'professional instructors' and 'supervisors'. The research has comprehensively shown for a variety of different reasons that from a road safety perspective there is no measurable crash difference between those taught by 'professional instructor' programs and those taught by 'supervisors'. Indeed the Australian system allows training by a fully licensed driver as a supervisor and it is my opinion that when he takes on this role he accepts he has the necessary experience to fulfil the requirements that accompany this role of teaching a learner driver the necessary skills to drive a motor vehicle. Indeed a study by Fitzgerald and Harrison (1999) demonstrated the weakness of driving instructors in Australian in relation to providing hazard perception skills. This is a fundamental requirement of teaching a young person to drive and is a role that should be filled whether a 'professional instructor' or a licenced driver has elected to take on the role and teach and sat in the front passenger's seat with a learner driver under their instruction.

A learner driver must be taught the boundary of their specific envelope for safe vehicle control before reaching it as opposed to learning it by experience of vehicles starting to slip laterally in horizontal curves or other near miss type situations. It is known that a young driver left to their own devices will select speed based on defacto speed limits or what may feel comfortable to them unaware of their own and the vehicle's limitations, without consideration of the road geometry or prevailing ambient conditions which in a rural environment is often the main determining factor of appropriate speed. This then often results in adoption of a speed which is too fast in the conditions. It is a role of the instructor to teach the driver proper speed selection strategies and to do so prior to entering the specific roadway feature, such as the immediately preceding curve to this incident.

...

It is noted that Mr Keramidas suggests that there was insufficient time and/or distance to avoid this incident and this is largely true once the loss of control is established. While this may [be] true it is in my opinion because they had not adequately prepared in their negotiation of the curve to give themselves options once the learner ran into potentially predictable difficulties (not necessarily at this location but at different times based on their level of experience). As the Human Factors books states at page 245 under the heading of Driver Education, Training and Licensing ' one of the things new drivers need to understand is that they are the authors of their own driving environment, not victims '. I would add that the role of the 'instructor' is one of a co-author who should proactively assist in shaping the manner of driving, in particular speed choice prior to negotiating roadway features not only responsive when a difficulty is encountered.

...

Mr Keramidas is of the opinion the effect of Mr Johnston's position is to elevate the status of the supervising driver to that of an instructor. Mr Keramidas argues that the RTA distinguishes between an instructor and supervisor, with the former requiring significant additional training and licensing as well as specific equipment. Therefore, while it is possible for an instructor to be a supervising driver, a supervising driver would have neither the training nor experience to be classified as an instructor. This fundamental difference in opinion between Mr Keramidas and Mr Johnston therefore pertains to both this question as well as questions 4 through to 7, dealing with what instructions or directions should have been given by the [appellant] at various points along the journey. The [appellant] would have had neither the training nor the specific equipment to enable him to provide a structured lesson, but rather should be considered [in Mr Keramidas' opinion] as someone who can supervise the learner driver practising her skills, and is not sufficiently skilled to provide the same level of guidance as a licensed instructor. A licensed instructor is also trained to be able to control a vehicle's progress [both in terms of its speed and direction] from the passenger seat, with the aid of the dual control foot pedals and training to control steering [if necessary] from the passenger seat. The [appellant] did not have available to him a dual control vehicle and was not trained to 'take control' from the passenger seat.

Mr Keramidas also indicates that on review of the witness statements the [appellant] had provided guidance and intervention at various points along the earlier journeys dealing with speed and appropriate control of the vehicle by the learner driver. In other words, he was not merely a passenger but did fulfil his supervisory role. It should also be noted that in Mr Keramidas' review of the material it is evident that this learner driver had driven this section of roadway on a number of occasions during the preceding 24 hours, and on at least two of those occasions in more adverse conditions [when it was dark] than at the time of this incident.

Following on from Mr Keramidas' response to the previous question therefore, unless there was some element of the [respondent's] driving to have caused concern then there would be no need to intervene. Hence, as the speed was considered safe and reasonable, unless the driver's steering control was of concern to the supervising driver then no action was required. It is Mr Keramidas' opinion that there would have been no reason for the [appellant] to have intervened by providing the [respondent] with any instruction or direction prior to the [appellant] ' feeling the back of the car move out very slightly to the right '.

...

Q8. What was the relationship, if any, between speed and loss of traction causing ' the back of the vehicle to move out...'?

Response to Q8:

Slideslip involves motion in a curved path, with the geometric relationship involving speed, radius of path, and skid resistance. Speed is therefore an integral part of the equation and would inevitably have played some part. It is agreed that speed was not the sole or primary cause of the loss of traction, as other factors such as steering control [effecting radius of path] and the 'irregularities' on the road surface [effecting skid resistance] would also have contributed to some extent.

...

Q14. What was the speed of the vehicle:

(a) at the commencement of the tyre mark?

(b) on average over the distance of the tyre mark?

(c) at the end of the tyre mark?

Response to Q14 (a), (b) and (c):

As the vehicle was in the process of forming the yaw marks, its 'slip' angle would be retarding the vehicle and causing it to slow. As against this, the [respondent] is assumed to have been under full throttle, which would be counteracting at least some of this slowing. Towards the commencement of the 'yaw' the acceleration potential of the vehicle would have exceeded the rate of slowing, while as the slip angle increased the retardation rate would have overcome the accelerating being potentially generated by the application of the throttle. The experts therefore conclude that the average speed of the vehicle during the yaw would be in the order of 70 km/h, while at the start it may have been a few km/h faster, and at the end a few km/h slower. Overall, the most useful advice the experts can provide is that the speed over the course of the yaw should be considered as about 70 km/h.

...

Q16. Is Ms Fancourt's observation that the ' fishtailing was getting more exaggerated ' consistent with the defendant's observation that they plaintiff lifted her foot off the accelerator and then pressed the accelerator ' straight to the floor quite quickly '?

Response to Q16:

As the experts indicated in answer to Question 14, the addition of acceleration in the area of the yaw would make little difference to the vehicle's speed at that point. If acceleration were applied earlier [prior to any side slip] then the vehicle's speed would increase. The observation of the ' fishtailing was getting more exaggerated ' more probably relates to the additional steering over corrections of the driver than of her having applied full throttle partway through the sequence of the vehicle's motion from the bend to the tyre marks.

...

Q18. Is the observed ' fishtailing ' of the vehicle also consistent with the vehicle being driven into the curve at excessive speed in wet conditions?

Response to Q18:

Mr Keramidas is of the opinion that the observed 'fishtailing' was not the result of excessive speed in wet conditions but rather an overreaction by the [respondent] to a destabilisation of the vehicle travelling over the irregularities in the road surface. Even so, as the loss of traction in a curved path is a function of three things, being radius of path, speed, and skid resistance, a reduction in speed would therefore reduce the potential for loss of traction.

Mr Johnston is of the opinion that the observed 'fishtailing' was a function of excessive speed in wet conditions for the experience of this particular driver. A reduced speed would have reduced the likelihood of loss of control as outlined by Mr Keramidas but also provided additional contingency for the supervisor to respond to avoid this incident.

It remains the opinion of Mr Keramidas that a 70 km/h approach speed would be considered appropriate under the circumstances, while Mr Johnston is of the opinion that at 70 km/h the speed is at a level where safety is compromised for this specific class of learner driver [as outlined earlier]."

THE PRIMARY JUDGMENT

The Competing Cases

36 The primary Judge explained (at [4]-[5]) the respondent's case as follows:

"4. the [respondent's] primary case was that the [appellant] breached the duty of care he owed her as the supervising driver by failing to properly supervise, instruct and direct her as to the appropriate speed at which to negotiate the bend on the roadway having regard to the geometry of the road (in particular that the bend tightened in the curve radius) and the prevailing wet conditions. A variation of her case was that the [appellant] breached his duty of care in allowing her to drive, or to attempt to drive, through the bend at an unsafe speed in the prevailing circumstances and, generally, by failing to pay sufficient attention to the manner in which she drove the vehicle on approach to, and in the bend given her status as a learner driver and his relative lack of knowledge of her driving experience and skill level.

5. The [respondent's] case was that 70 km per hour on entering the bend (a speed the experts assumed for the purposes of the preparation of the joint report, but which they were unable to accurately calculate without additional assumptions about vehicle control through the bend) was not a safe or reasonable speed for an inexperienced driver in wet conditions since it provided no contingency to safely accommodate the steering and speed adjustments a driver would likely have needed to employ to negotiate the bend in wet conditions. The failure on the [appellant's] part to advise the [respondent] to slow down on approach to the bend, and/or to be alert to the need to direct her that she needed to slow down before negotiating the bend, meant that in the time available after control was irretrievably lost, an accident was unavoidable.

37 Her Honour summarised the appellant's case as follows:

"6. The [appellant] acknowledged that as the supervising driver at the time of the accident he owed the [respondent] a duty of care, the nature and extent of which sourced primarily from the Road Transport (Driver Licensing) Act 1998 and the Road Transport Driver Licensing Regulations 1999, namely a statutory obligation to supervise her with respect to the driving of the vehicle and to take all reasonable precautions to prevent her from contravening the road rules under the governing legislation. Although there was considerable disagreement in the course of the hearing about the scope and content of the duty of care of a casual supervisor as distinct from a professional supervisor of a learner driver, in final submissions Mr Stitt QC accepted that in discharging the [appellant's] statutory duty as a casual supervisor he was required to instruct, guide and direct the [respondent] as to the manner of driving as determined by him to be necessary, from time to time, during the period of supervision. It is implicit in that submission that the [appellant] was obliged to adjust and vary the content of his instructions and directions to account for any changed driving conditions during the period of supervision, in particular, that guidance and instruction on speed choice might need to be given on approach to the bend on the Wallanbah Road given that the road was wet and that instruction would need to be given if the [respondent] was driving at a speed that required some moderation.

7. The [appellant's] case was that the more probable cause of the accident was not excessive speed in the prevailing weather conditions. According to Mr Keramidas, the expert retained by the [appellant], 70-75 km per hour was a reasonable speed for the [respondent] to approach or enter the bend in both wet and dry conditions. It was the [appellant's] case that as the [respondent] approached and entered the bend at an otherwise safe speed, she simply lost control of the vehicle, most likely as a result of her overreaction to irregularities in the road surface within the bend. This, it was submitted, was manifested by her overcorrecting by steering to the right, when the rear of the vehicle moved slightly out to the right, and then by her overcorrection to the left. This then ultimately caused the vehicle to "fishtail" in a widening arc across the roadway before it left the roadway altogether and collided with the tree. Since 70 km per hour was a safe and reasonable speed for the [respondent] to be travelling in all the circumstances it was the [appellant's] case that there was no need for the [appellant] to have intervened by guidance or direction on approach to the bend.

8. It was further submitted that even were a breach of duty established by the [appellant's] failure to intervene when the [respondent] was losing control of the vehicle, the interval of time between that point and when control of the vehicle was irretrievably lost and the collision was so narrow (an estimated four seconds as evidenced by the yaw marks on the road surface), that there was nothing the [appellant] could have done to avoid the collision and, further, that any intervention he might have attempted would have been unlikely to avert the collision.

...

10. ... Alternatively, if the [appellant] is found to have been negligent, the [appellant] submitted there should be an adjustment to the amount the [respondent] is awarded in damages by reason of her contributory negligence in the order of 100 per cent."

The Critical Issues

38 The primary Judge pointed out (at [12]) that the evidence in the case left some of the critical facts underlying the issue of liability unresolved or not addressed at all. The two contentious questions about which there was some evidence were these:

" (a) at what speed was the vehicle travelling when it entered and commenced its negotiation of the bend to the point where control of the vehicle was lost, and

(b) at what point on, or in the bend, did the initial slip of the rear of the vehicle occur, and why?"

The primary Judge's analysis of the evidence

39 Her Honour noted (at [17]) that the respondent had tendered the appellant's statement without any application under s 136 of the Evidence Act 1995 being made to limit the use to which his statement might be put. In final submissions, however, Mr Toomey had relied only on parts of the statement, on the ground that the appellant's demonstrated unreliability in his dealings with the police after the accident justified rejecting other parts of the statement. Mr Stitt, in contrast, had submitted that the appellant's statement was consistent with the (limited) objective evidence and with the expert evidence of Mr Keramidas.

40 The primary Judge observed (at [28]) that the appellant's account of the driving sequence was inconsistent with Mrs Fancourt's evidence. Mrs Fancourt had said that she saw the vehicle fishtailing out of control about half way around the bend. The appellant's account was that the vehicle had moved slightly to the right as it came out of the bend and that the respondent's steering overcorrection caused the fishtailing.

41 Her Honour stated (at [31]) that it was necessary to scrutinise the appellant's statement with considerable care because he had been the respondent's supervisor when she was injured and had been the focus of a police investigation. The appellant had also lied to the police concerning his dealings with the respondent in the 12 hours prior to the accident.

42 The primary Judge then addressed the significance of the first driving episode to the issues in the case. Mr Toomey had submitted that, although there was no alcohol found in the appellant's blood at the time of the accident, his conduct the previous night was relevant. He had permitted the respondent, a learner driver, to drive his vehicle at night, thereby displaying a tendency to act in disregard of the duty he owed her as a supervisor, particularly when there was evidence that he may have been affected by alcohol at that stage.

43 Her Honour found (at [43]) that, accepting that the appellant had stayed up to watch the sunrise, he had a maximum five hours to sleep before setting out on the journey to Firefly late in the morning of 27 August 2005. In the absence of evidence from the appellant, her Honour was prepared to infer (at [47]) that his capacity to adequately supervise the respondent on the return trip from Firefly was " adversely impacted by a lack of sleep ". While her Honour was not satisfied that this of itself constituted a breach of duty, it was a factor to take into consideration on that question.

44 The primary Judge next recounted Mrs Fancourt's evidence. Her Honour considered (at [47]) that the appellant's failure to give evidence justified giving greater weight to Mrs Fancourt's evidence insofar as it was in conflict with that of the appellant.

45 Her Honour observed (at [53]) that Mrs Fancourt's evidence that she first saw the vehicle fishtailing out of control was volunteered for the first time in her evidence in chief. This evidence had to be taken into account in assessing the joint report of the experts, insofar as the report suggested that the initial slip of the vehicle to the right had probably occurred some short distance after the vehicle had driven over the irregularities in the road surface. Mrs Fancourt's oral evidence had led Mr Johnston, when giving oral evidence to qualify the opinion expressed in his report. More importantly, Mrs Fancourt's observations were not challenged in cross-examination, despite it being the appellant's case that the cause of the accident was the respondent's overreaction when the rear of the vehicle slipped slightly to the right as it made contact with the slight irregularity in the road surface.

46 Mr Stitt had urged the primary Judge to accept Mr Keramidas' evidence that Mrs Fancourt must have been mistaken in stating that the vehicle was already out of control at or near the apex of the bend. Mr Keramidas said that the dynamics of the vehicle's forward fishtailing motion relative to the position of the yaw marks made it impossible for the slide to have commenced at the point Mrs Fancourt identified. The primary Judge found (at [64]), however, that Mr Keramidas' analysis was based on an untested assumption that the respondent corrected only once to the right (to counteract the slip of the rear of the vehicle) and once to the left. The respondent could have commenced with a less aggressive manoeuvre than Mr Keramidas had assumed, thereby enabling her to negotiate the bend, albeit in a fishtailing manner because of the sideslip and the vehicle's forward motion. Mr Keramidas had effectively conceded that if the vehicle was fishtailing down the road within the last third of the bend, his opinion that Mrs Fancourt's account was impossible would carry no weight.

Findings of Fact

47 The primary Judge was not satisfied that the surface irregularities were a precipitating cause of the loss of control of the vehicle (at [68]). The irregularities were a common feature of roads and were barely visible. Moreover, had the irregularities been the precipitating cause, Mrs Fancourt would not have had time to observe the evasive manoeuvres she described. Her Honour made the following finding (at [69]):

"Whilst I am not able to point with certainty where control was lost I am persuaded that it was within the bend, some distance back from the so-called irregularities, and not as the vehicle was exiting or emerging from the bend on approach to the straightening or flattening of the curve."

48 The primary Judge said (at [70]) that, having discounted the irregularities as a precipitating cause of the accident, the speed of the vehicle and the respondent's reaction to the realisation that she was travelling too fast were likely to be determinative of the question of liability. After quoting the experts' answers in the joint report to Question 8 ([35] above), her Honour observed (at [72]) that apart from Mrs Fancourt's evidence, there was no data available to determine the vehicle's speed on entry into the bend or as it reached the point where the respondent lost control. The only reference point was the experts' agreed position that the vehicle was travelling at an average speed of 70 kph over the course of the yaw. Any acceleration or braking immediately prior to the yaw marks would have affected the conclusion as to the speed of the vehicle on entering into the bend, but the experts disagreed as to the extent of any braking or acceleration.

49 The primary Judge was not prepared to rely on the appellant's statement that the respondent had turned into the bend " normally " to support an inference that the vehicle was travelling at or below 70 kph and that the speed had not increased up to the point the appellant said he had looked at the speedometer. Her Honour observed that she was not compelled to accept Mrs Fancourt's estimate of 80 kph, but she was not prepared to disregard it completely.

50 Her Honour addressed the question of speed as follows (at [75]-[80]):

"75. There is no physical evidence that the vehicle braked or accelerated as it entered or traversed the bend, or during the fishtailing manoeuvre, before yawing off the road into the tree. The [appellant's] account to police that he observed the [respondent's] foot come off the accelerator before going back down on the accelerator (and that this occurred after her steering first to the right and then to the left in response to the rear of the vehicle slipping) suggests that the vehicle was under some throttle as it moved through the bend, as might be expected in order to maintain the forward momentum of the vehicle, although the extent to which it was under acceleration at this time is simply not able to be ascertained.

76 Acceleration to some degree on approach to and prior to the deposit of yaw marks is also supported by the observations made by Mrs Fancourt that the fishtailing of the vehicle was becoming 'more exaggerated' as it approached her through the bend. According to both Mr Keramidas and Mr Johnston this is consistent with acceleration being applied (and not braking) as once the tyres are starting to slip over the road surface and the fishtailing occurs in response to the oversteering then even light braking will cause the wheels to lock which did not occur in this case.

77 The question whether there was any braking (and consequent loss of speed) prior to the vehicle slipping simply cannot be answered by reference to the physical evidence and, in the circumstances, there is insufficient evidence to determine the question even on the probabilities.

78 Mr Keramidas did however accept that the mere fact of sideslipping as control of the vehicle was lost in the bend would have the effect of 'washing off' some speed prior to the placement of the yaw marks. The degree to which that would occur would depend upon whether the vehicle was under full acceleration, some acceleration or no acceleration (ie with the vehicle travelling at idle under momentum only) from that point to the placement of the yaw marks.

79 If the vehicle were under no acceleration the speed 'washed off' was able to assessed with some precision by application of a given mathematical formula referable to the yaw and the angle of slip, such that at the point of the irregularities in the road the vehicle would have been travelling at 83 km per hour and, if at the apex of the bend a further 23 metres to the west, the vehicle would have been travelling at 88 km per hour. Mr Keramidas conceded that both speeds were too fast for an inexperienced driver to attempt to negotiate the bend in the wet and that intervention by the supervisor was required. If, on the other hand, the vehicle was under full acceleration, no speed would have been 'washed off' despite the loss of traction as the vehicle sideslipped, and, if it were somewhere in between, something in the order of between 6 and 9 km per hour would have been 'washed off'.

80 Taking into account the increasing amplitude of the fishtail as described by Mrs Fancourt, I accept that there was some acceleration towards the yaw which would likely have been counteracted by the increasing angle of slip. I am not, however, able to reason to a view one way or the other as to whether speed would have been washed off such as to enable me to conclude that the vehicle was travelling through the bend at a speed greater than 70 km per hour, although it is possible this was the case."

As explained later ([143] below), the figure of 88 kph in the judgment (at [79]) appears to be a mistake for 86 kph.

Breach of Duty

51 Having reached this conclusion, her Honour identified (at [83]) a " stark " question for decision:

"The question is a stark one. Has the [respondent] persuaded me on the probabilities that 70 km per hour was an unsafe speed to attempt to traverse the bend such that intervention by the [appellant] as supervisor was required? The related question is whether once sideslip has occurred, was there time for the [appellant] to intervene and to take action to prevent the vehicle careering out of control and colliding with the tree?"

52 I have already referred to part of her Honour's answer (at [7]), but I shall set it out in full (at [84]):

"Despite the difficulties that present in this case in resolving with any degree of certainty the reason why control was lost, having discounted the irregularities in the road surface as the precipitating cause, partly as a result of preferring the evidence of Mrs Fancourt over the [appellant's] unsworn account, I am persuaded, on the probabilities, that the [respondent] approached and entered the bend at a speed that was not reasonable or safe having regard to her level of experience and the wet condition of the roadway. That being the case, and where there is no evidence that the [appellant] took any steps at all to instruct or direct or to guide her as to an appropriate speed to enter and negotiate the bend in the wet (sufficiently early or at all), I am satisfied that he breached his duty of care entitling the [respondent] to a verdict in her favour."

Causation

53 The primary Judge observed (at [85]) that it was necessary to deal with causation. Her finding that control of the vehicle was lost at or near the apex of the bend, prior to the transitional or exit spiral, undercut the appellant's submission that there had been no breach of duty prior to the respondent's overreaction to the slight slip of the vehicle. Moreover, since control had been lost some distance back from the road surface irregularities, the time available to the appellant to intervene had increased " by a measure of some seconds, but by a critical measure " (at [86]).

54 Her Honour accepted (at [90]) that:

"any analysis as to what action the [respondent] may have taken if the [appellant] had intervened with a direction such as 'ease off' or 'brake' in the time available prior to the slip of vehicle being irrecoverable, involves an assessment of a hypothetical in circumstances where the vehicle was at risk of being irretrievably out of control, and the [respondent] was likely to have been in a state of panic as a result. I am however satisfied that the [appellant], acting reasonably, could have taken the steps Mr Johnston suggests [such as taking control of the steering wheel] in an attempt to defuse the panic, pacify the situation and either take control of the vehicle or bring the vehicle into control."

There was no evidence that the appellant had done anything (at [91]). The probable explanation was his tiredness and " lack of focus ".

Contributory Negligence

55 According to her Honour (at [93]), the respondent's duty of care as a learner driver, for the purpose of assessing whether she had been contributorily negligent, had to be understood by reference to her obligation to drive within the relevant statutory constraints and to accept instruction, guidance and direction from her supervisor. The recipient had not breached her duty. She had not exceeded speed limits and had received no instructions or guidance. Nor was there any evidence that the respondent was aware of the appellant's lack of sleep. Accordingly, her Honour was not satisfied that the evidence established that the respondent had contributed to her injuries by failing to take precautions against the risk of harm to which she was exposed as a learner driver.

Verdict

56 For these reasons the primary Judge entered a verdict for the respondent.

SUBMISSIONS

Appellant's Submissions

57 The appellant's written submissions advanced six distinct challenges to her Honour's findings on liability.

(i) Evidence had been wrongly admitted of a conversation between Mr Gordon (the respondent's then boyfriend) and the respondent which took place in the early hours of 27 August 2005. According to Mr Gordon, the respondent had said that the appellant had asked her to drive to Firefly (the first driving episode) because he had been drinking. The appellant submitted that this evidence was not relevant to any issue.

(ii) The primary Judge had given too little weight to the appellant's statement, which had been tendered in its entirety by the respondent. In the circumstances, it was inappropriate to diminish the significance of the statement because the appellant had not been called to give oral evidence.

(iii) The primary Judge had failed to identify correctly the scope of the duty the appellant owed to the respondent. In particular, her Honour had not taken into account the distinction between a voluntary supervisor and a professional instructor that is recognised in the relevant acts and regulations. The only duty of a voluntary supervisor such as the appellant was to provide such guidance as was reasonably necessary in the circumstances to prevent a contravention of the road rules. The findings of breach of duty by her Honour proceeded on a mistaken view as to the scope of the duty.

(iv) The primary Judge did not make clear findings as to the speed the vehicle was travelling when it entered the bend. Her Honour's language was consistent with the actual speed being significantly less than 70 kph. In any event, on the assumption that the vehicle was travelling at 70 kph on entry into the bend, there was no basis for a finding that the speed was unsafe and some intervention by the appellant was required. Among other things, the finding was contrary to the evidence of Mr Karemidas, that 70 kph was a safe speed for a learner driver to approach the bend.

(v) The primary Judge failed to address the issue of causation correctly. If the appellant had breached his duty of care as a supervisor by not physically intervening in an endeavour to prevent the accident, it was necessary to consider whether an intervention after the vehicle began to slide was likely to have averted the collision. On the evidence, there was no such likelihood.

(vi) The primary Judge had failed to apply the proper standard in determining whether the respondent had been contributorily negligent. On the authority of Imbree v McNeilly [2008] HCA 40; 236 CLR 510, the correct standard was that of a reasonably ordinary driver, not an inexperienced learner driver. On that basis, a finding that the respondent was 100 per cent responsible for the accident was appropriate.

58 In his oral submissions, Mr Stitt emphasised that the appellant's duty of care as a supervisor had to take account of his responsibilities under the Licensing Regulation . The Licensing Regulation addressed the position of a voluntary or casual supervisor of a learner driver, such as a parent or friend, which was to be distinguished from the position of an instructor as provided for in the Driving Instructors Act 1992 and the Driving Instructors Regulation 2003 (which was replaced by the Driving Instructors Regulation 2009 on 1 September 2009). According to Mr Stitt, her Honour had imposed too stringent a duty on the appellant. It was not correct for her Honour to say (at [6]) that the appellant was obliged to vary the content of his instructions to account for any change in driving conditions during the period of supervision. The appellant's duty was only to take such action as would have been taken by a reasonable supervisor (not instructor) in the circumstances.

59 Mr Stitt acknowledged that Mr Johnston (but not Mr Keramidas) had expressed the view that even 70 kph was not a safe and reasonable speed for an inexperienced learner driver to enter and travel through the bend having regard to the wet conditions.

60 Mr Stitt submitted, however, that the evidence did not support a finding that 70 kph was not a safe speed for a learner driver to enter and proceed through the bend despite Mr Johnston's opinion to the contrary. There was a cogent body of evidence, not referred to by her Honour, suggesting that the speed was safe. In any event, her Honour had given no reasons for finding that the supervisor's duty to exercise reasonable care required the appellant to warn the respondent to lower her speed as she entered the bend. The finding was made without any explanation as to why a voluntary supervisor, acting reasonably, would appreciate that a speed of 70 kph entering the bend necessitated a warning to slow down because of the risk of a mishap. In particular, her Honour had not adverted to the distinction between the nature of the duty that is owed by a professional teacher-instructor and an untrained voluntary supervisor.

61 Mr Stitt further submitted that her Honour could not properly have found that the appellant breached his duty of care by failing to give instructions to the respondent on entering the bend without making an express finding as to the speed the vehicle was travelling at that point. No clear finding had been made.

62 Although the appellant's written submissions did not explicitly challenge the primary Judge's finding that the respondent lost control of the vehicle at or near the apex of the bend, Mr Stitt did so in his oral submissions. He contended that the primary Judge had wrongly preferred Mrs Fancourt's evidence over Mr Keramidas' opinion, which was based on a scientific analysis of the available data.

Respondent's Submissions

63 The respondent gave the following responses to the appellant's written submissions:

(i) The evidence of the conversation between Mr Gordon and the respondent had not been tendered as evidence of a tendency to act irresponsibly, but to demonstrate that the appellant had engaged in a single course of irresponsible supervision over 12 hours. In any event, the evidence had played no role in her Honour's finding that the appellant had failed in his duty to provide proper guidance and instruction.

(ii) Contrary to the respondent's submissions, the appellant's statement had been contradicted by other evidence, notably Mrs Fancourt's eyewitness account. It was well open to the primary Judge to prefer Mrs Fancourt's evidence, especially as she had not been challenged on the substance of her version.

(iii) The primary Judge had correctly stated the scope of the duty of care owed by the appellant to the respondent, particularly taking account of the concessions made by the appellant. Furthermore, the appellant's pleadings had admitted that the respondent was a learner driver and that the appellant was her " instructor ". It was therefore not open to the appellant to complain on appeal that her Honour had failed to distinguish between the duty of a voluntary supervisor and that of an instructor.

(iv) The primary Judge had not made a precise finding as to the speed the vehicle was travelling at the time the respondent lost control and the breakaway began. Her finding was merely that, whatever the speed, it was not reasonable or safe. This, so her Honour found, enlivened the duty of the supervisor to intervene.

(v) Although the respondent's written submissions sought to uphold the primary Judge's findings on causation, in oral submissions Mr Toomey conceded that there was no evidence to support a finding that physical intervention by the appellant, after the respondent had lost control, would have averted the accident.

(vi) The primary Judge had correctly stated the standard of care for her own safety required of a learner driver. Section 5R of the Civil Liability Act 2002 establishes that the standard is that of a reasonable person in the position of a learner driver having regard to what that person knew or ought to have known at the time. Her Honour had therefore not misapplied Imbree v McNeilly .

64 The respondent filed written submissions in support of her notice of contention and Mr Toomey elaborated on these on the second day of the appeal. The respondent contended that her Honour should have found that the vehicle was travelling at 80 kph or more at the commencement of the breakaway.

65 Mr Toomey submitted that Mrs Fancourt's estimate of the vehicle's speed had not been seriously challenged and should have been given more weight. Furthermore, the experts had agreed that the average speed of the vehicle through the yaw marks was 70 kph. In their joint report they had accepted that at the start of the yaw the vehicle may have been travelling " a few km/h faster ". This supported the conclusion that the vehicle was travelling substantially faster than 70 kph as it entered the bend.

66 Mr Toomey also relied on the expert's joint opinion that the exaggeration of the fishtailing probably related to the respondent's steering over corrections rather than her having applied full throttle. Mr Toomey submitted that her Honour had overlooked this evidence when she concluded (at [80]) that there had been acceleration towards the yaw which had been counteracted by the increasing angle of the slip.

REASONING

Preliminary Points

67 In order to understand the issues that arise on the appeal several points should be made about the primary judgment and the submissions made by the parties.

68 First, it is not entirely clear whether her Honour intended to make a finding as to the speed the vehicle was travelling when it entered the bend. As I have noted, Mr Stitt submitted that no such finding had been made and that this undermined her Honour's conclusions as to breach of duty.

69 Secondly, the primary Judge seems to have assumed, rather than demonstrated, that the appellant's failure to instruct or guide the respondent as to an appropriate speed to negotiate the bend in wet conditions constituted a breach of his duty of care. Having found (at [84]) that the respondent approached the bend at a speed that was not reasonable having regard to the conditions and her expertise, her Honour did not explain why it followed that the appellant, as a supervisor of a learner driver, should have appreciated that this was the case and acted accordingly.

70 Thirdly, the judgment does not distinguish clearly between breach of duty and causation. Under the heading " Conclusion on the issue of breach " her Honour found (at [84]) that the appellant breached his duty of care by failing to instruct or guide the respondent as to an appropriate speed before she entered the bend. However, under the heading " Causation " her Honour did not address whether that breach caused the accident. Her Honour addressed causation on the basis that the relevant breach was the failure of the appellant, once control of the vehicle began to be lost, to take steps to " defuse the panic" . In this section of the judgment the primary Judge apparently intended to find that the appellant breached his duty of care by not attempting to take physical control of the vehicle once it started to slide and that his omission to do so caused the injuries to the appellant.

71 Fourthly, as I have noted, Mr Toomey conceded in oral argument on the appeal that he could not support a finding that a failure by the appellant to attempt to take physical control of the vehicle after it had begun to slide was causative of injury to the respondent. It follows that her Honour's conclusion on liability cannot be upheld on the basis that the appellant breached his duty of care in this respect.

72 Fifthly, despite the appellant placing the admissibility of Mr Gordon's evidence at the forefront of his written submissions, the primary Judge appears not to have relied on that evidence to make any of her critical findings of fact. The finding (at [47]) that the appellant " was adversely impacted by a lack of sleep " at the time of the accident, whatever its merits, was based on evidence that after completing the return trip from Firefly early on Saturday morning, the appellant and Ms Taylor stayed up to watch the sunrise. The finding was not based on Mr Gordon's evidence that the respondent had told him that the appellant asked her to drive early on the Saturday morning because he (the appellant) had been drinking.

73 No doubt it was for these reasons that Mr Stitt chose to say nothing in his oral submissions about the question of admissibility of Mr Gordon's evidence. As the evidence played no significant part in the primary Judge's findings, there is no need to consider whether the evidence should not have been admitted.

Any Finding as to Speed?

74 The parties' submissions acknowledged the difficulty of determining whether the primary Judge had actually made a finding that the vehicle was travelling at 70 kph as it entered the bend and approached the point at which the respondent lost control. In my opinion, although the judgment is not entirely clear on this issue, her Honour intended to make such a finding.

75 The primary Judge accepted (at [79]) that if the vehicle had not accelerated after it had begun its slide at or near the apex, its speed immediately before the slide could be mathematically calculated at 86 kph, (which, as explained at [143] below, appears to have been mistakenly recorded as 88 kph in the judgment). This calculation assumed correctness of the experts' view that the average speed of the vehicle through the area of the yaw marks was 70 kph.

76 Her Honour found (at [80]) that there had been some acceleration of the vehicle as it travelled towards the area of the yaw marks, but considered that the acceleration would have been counteracted by the increasing angle of the slip. However, she was unable to determine as to whether sufficient speed had been " washed off " the vehicle during its slide to support a finding that the vehicle was travelling at a speed greater than 70 kph into the bend, although she said that a greater speed was " possible ".

77 Read in isolation, this reasoning is not an explicit finding that the vehicle was travelling into the bend at 70 kph. But the analysis needs to be read together with her Honour's formulation (at [83]) of the " stark " question the answer to which supported a verdict for the respondent. The formulation of that question, by expressly incorporating a reference to a speed of 70 kph, makes it tolerably clear in my opinion that her Honour intended to find that the speed of the vehicle entering and travelling through the bend was 70 kph.

78 This conclusion is reinforced by her Honour's finding that the respondent, as a learner driver was travelling at an unsafe speed as she entered the bend. In making that finding her Honour appears to have relied on Mr Johnston's evidence that a speed of 70 kph allowed insufficient margin of error in the circumstances. It is difficult to see how her Honour could have relied on that evidence unless she had found that the vehicle was indeed travelling at that speed. Read this way, the judgment incorporates a finding that the vehicle was travelling at 70 kph as it entered the bend and moved to the point of the breakaway.

Finding as to Where Loss of Control Occurred

79 The appellant's challenge to the primary Judge's finding as to where the respondent lost control of the vehicle is of less significance to the appeal than the prominence given to the issue in oral argument may have suggested. It would have been significant had the appellant maintained that the accident occurred because of the respondent's reaction to a slight slip resulting from the vehicle's contact with an irregularity in the road surface. But the appellant did not do so.

80 The challenge also may have been very important if the respondent sought to uphold the primary Judge's finding that the appellant should have attempted to control the vehicle after it began its slide. But as I have pointed out, the respondent accepted that even if the appellant had not attempted to take control of the vehicle once the vehicle began to slip, his failure could not be shown to have caused the accident.

81 However, the challenge may have some bearing on the central question of the speed at which the vehicle was travelling as it entered the bend. For that reason, I shall consider whether the appellant has made good his criticism of her Honour's finding.

82 Mr Stitt's submission was that Mr Keramidas' evidence demonstrated, by the application of scientific principles, that the loss of control simply could not have occurred as early as Mrs Fancourt's evidence suggested. Mr Stitt relied on Exhibit 9, a plan prepared by Mr Keramidas during the trial which showed the trajectory that, in his opinion, the vehicle would have taken had the loss of control occurred at or before the apex of the corner and had the fishtailing commenced within the radius of the bend. The trajectory depicted in Exhibit 9 had the vehicle leaving the road surface to the right, well before the point at which the yaw marks on the road commenced.

83 Mr Keramidas' evidence in chief supporting what was depicted on Exhibit 9 was as follows:

"STITT:

Q. You heard the evidence that related to the hypothesis propounded by Mr Toomey and ultimately Mr Johnston on the proposition that the [respondent's] vehicle was out of control at or before the apex of the corner and that the fishtailing was occurring within the radius of the corner. Do you recall that evidence and that hypothesis?

A. Yes, I do.

Q. Do you have a comment based on your science or opinion about that as a physical possibility?

...

\WITNESS: Yes, I do.

...

Q. What is that opinion and what is the basis for it?

A. In my opinion it would be impossible for the vehicle to have been out of control by the midway point of the bend and still manage to exit the bend where it did and end up colliding with the tree where it did.

...

Q. Why are you of that opinion, what is the basis for it?

A. The opinion is formed on the basis of understanding the dynamic effect on a vehicle as it's side slipping or fishtailing as it is known, and in particular because it is within a bend. During a side slip or rotation or yaw - they are all the same thing - of a vehicle so that the rear right slides out, not a problem. It is quite possible and quite consistent for the vehicle to achieve that within the bend. The difficulty arises when there is a corrective steering action to the right, as the vehicle reorientates from side slipping with the rear right, to the right, so that the rear left is now swinging out. The curvature of the bend means that the available road space is not too far off the width of the roadway. In other words, it is going to be pointing to the outside of the bend.

For a driver to then at that point - I'm sorry, forget the driver - for the vehicle at that point to be physically reorientated such that it remains on the road surface, would in my opinion be impossible if it is travelling at 60, 70, 80 - any measurable road speed because it's going to traverse the available distance in less than half a second. So a driver, as they've corrected to the right, is not going to have time to apply steering to the left and maintain the vehicle on the roadway. It just can't happen. The radius is too tight.

Q. And what would be the consequence of that dynamic movement, if there was loss of control at or before the apex, so far as the direction of the car was concerned?

A. The vehicle would inevitably end up off the road to the right, relative to its direction of travel. As to its form, it depends entirely on what its attitude was as it came off the road surface.

Q. So it would have come off the road to the right, whereas this vehicle came off the road to the left, and that's the fact, is it not?

A. Yes, having completed what is essentially described as being half of that bend, so that 35 metres of the bend which includes the last bit of the transition, and then ended up on the left is just, it couldn't have done that.

Q. Those pieces of objective evidence, and by that I mean the position on the road of the yaw marks, the position of the exit and the impact with the tree and the radius of the bend, what do you say about the proposition that in some way or other the loss of control occurred at or before the apex?

A. In my opinion the proposition cannot stand, based on the physics of the situation."

There was no evidence that the vehicle being driven by the respondent had left tyre marks to the right of the road.

84 The primary Judge had to weigh Mr Keramidas' opinion against the other expert and lay evidence bearing on the issue. Mr Johnston disagreed with the suggestion put to him by Mr Stitt in cross-examination that it was simply impossible for the vehicle to slide off the road to the left in the manner suggested by the yaw marks, had the respondent lost control at or before the apex of the bend. Mr Johnston said that even if the loss of control had occurred at or before the apex of the bend, the vehicle could have taken the trajectory indicated by the yaw marks. In his opinion, ascertaining the point at which control had been lost was a matter that depended on the lay evidence, not the limited physical evidence with which the experts had to work.

85 Mr Johnston also disagreed with a suggestion that the respondent had engaged in only three steering actions from the time the vehicle entered the bend. Mr Johnston accepted that the respondent would have initially steered to the left as the vehicle began to negotiate the bend; she then would have steered to the right in an ill-fated endeavour to correct an apparent movement of the vehicle to the right; and finally she would have steered hard left at the start of the yaw marks. He said, however, that it was not possible to determine how many additional steering actions occurred and precisely what effect they might have had on the trajectory of the vehicle.

86 After his evidence had concluded Mr Johnston prepared a plan, which became Exhibit P. The effect of the trajectories depicted in the plan was that if Keramidas' analysis was correct, the vehicle would have gone off the surface of the roadway to the right whether the slippage had begun at or near the apex of the bend or further east along the bend (as the appellant contended). Since Mr Johnston had left the country when he prepared Exhibit P, he was not cross-examined about it.

87 Mrs Fancourt's evidence was that when she first observed the vehicle fishtailing out of control it was about half way through the bend. She then described how she moved to the left of the road to avoid the oncoming vehicle and observed it pass her own vehicle before rolling and colliding with a tree. Mrs Fancourt stated unequivocally that she realised the vehicle approaching her was out of control as soon as she saw it.

88 The cross-examination of Mrs Fancourt occupies less than one page of transcript. She was asked about the fishtailing movement of the vehicle and confirmed that the movement became more exaggerated as the vehicle proceeded along its path. But she was not challenged as to her evidence concerning the location of the vehicle when she first saw that it was apparently out of control. In particular, no suggestion was put to Mrs Fancourt in cross-examination that her view of the oncoming vehicle was obscured by the configuration of the road or that her recollection of these matters was faulty.

89 Mr Keramidas was cross-examined about the assumptions underlying Exhibit 9. The key passage is set out below. The references in that passage to " outline 7 and 8 " are to markings on the plan which record Mr Keramidas' opinion as to the likely trajectory of the vehicle immediately after the (assumed) initial movement to the right at the apex of the bend:

"Q. ... What I'm putting to you is that there is no material to be deduced from what you saw on the roadway itself to show the path that you've assumed on Exhibit 9. There are no road marks for instance which show where the vehicle moved to one side?

A. Correct.

Q. Whether it deviated once twice, only twice or once, twice, three, four times?

A. Yes.

Q. There's no such material?

A. You're entirely correct. All I've done here is demonstrate what I would expect to happen if the vehicle is out of control in the middle of the bend having slipped out in one direction and the correction. It's again I'm sorry to keep bringing you back to it, but it's outline 7 and 8 which are the critical features in that half a second and recovery has to take place otherwise the vehicle leaves the road.

Q. You don't know that 7 and 8 accurately represent the position of the motor vehicle?

A. They don't.

Q. At that position on the road?

A. They can't on the estimation.

Q. It's merely a guestimate?

A. I hope a little bit better than guestimate.

Q. Given the position of the vehicle given it as being in the middle of the bend and loss of control you're not suggesting, are you, that with all the variables which apply, the precise state of the road, the precise steering input that was put by the driver you can't suggest, can you, that there is only one possible path that could be followed from there?

A. The amplitude of the path would change depending on the speed at which the loss of traction occurs for whatever reason. The path would be the same. It's how wide the amplitude is between it. So if we were to drop this down to 40 kilometres per hour then we would have over 1 second with a radius of path that is so close to effectively nearly being able to do a 90 degree turn in 6 and half metres so yes, it is recoverable. It's premised on an understanding that you can't turn tighter than the maximum friction of the road surface will allow that that's it.

Q. My point is this Mr Keramidas, you do not know at what precise angle to the right the back of the vehicle moved?

A. Correct.

Q. That's an imponderable, we're never going to know that are we?

A. Correct.

Q. You don't know precisely what steering input to the right the plaintiff put on it?

A. Correct.

Q. You do not know precisely what steering input the plaintiff put to the left?

A. Yes, correct.

Q. You don't know precisely what happened to the speed of the motor vehicle?

A. I can't tell you precisely, no."

90 The primary Judge gave very careful consideration to the conflict between Mrs Fancourt's unchallenged eyewitness and Mr Keramidas' opinion that her account could not have been accurate. Her Honour noted (at [64]) that Mr Keramidas' analysis rested on the untested assumption that the respondent over-corrected only once to the right (to counteract the slip to the right of the rear of the vehicle just short of the apex) and then once again to the left. The primary Judge observed that the respondent may have undertaken a less aggressive turning manoeuvre (or manoeuvres) that would still have had a left turning input as the vehicle moved through the bend, but such that control was never completely regained before the vehicle eventually " yawed " out of control once clear of the bend. Her Honour accepted the respondent's submission that this conclusion was consistent with the absence of any physical evidence of sideslip on the road surface within the bend .

91 In my opinion, no error has been shown in the primary Judge's finding that Mr Keramidas' analysis in Exhibit 9 did not carry the weight attributed to it by the appellant. On the contrary, I think that her Honour correctly concluded (at [69]), on the evidence before her, that although the point at which the initial slip to the right could not be fixed with precision to the apex of the bend, it occurred some distance back from the irregularities in the road surface and not as the vehicle emerged from the bend on approach to the straightening of the curve.

92 The two critical matters that support the primary Judge's view are Mrs Fancourt's unchallenged evidence and Mr Keramidas' concessions in cross-examination. There is nothing improbable in Mrs Fancourt's eyewitness account of where she located the vehicle at the time she first saw it fishtailing. On the contrary, Mrs Fancourt was not only familiar with the configuration of the Wallanbah Road in the area of the accident but it might be thought that the evasive manoeuvre she was required to take might have focussed her attention on the sequence of events. In any event, her account was simply not challenged and nothing was put to her suggesting that her evidence on this point was mistaken or in some way coloured by her own reaction to imminent danger.

93 Mr Keramidas' answers in cross-examination demonstrated, consistently with Mr Johnston's opinion, that there were a number of variables that could have affected the hypothesis recorded in Exhibit 9. Mr Keramidas accepted that there was no information available to determine, for example, the respondent's steering input, the degree of slippage of the vehicle or its speed. All of these variables, together with different assumptions as to the precise point at which the vehicle began to slip, could have affected the analysis.

94 Mr Keramidas' evidence raised questions about the reliability of Mrs Fancourt's evidence that might well have been explored further in cross-examination. But they were not. In these circumstances, the primary Judge's finding on this issue reflected the probabilities.

Breach of Supervisor's Duty: 70 kph

95 It is convenient to consider at this point whether the finding that the appellant's failure to instruct the respondent or guide her as to the appropriate speed coming into the bend should be upheld. I address this question on the assumption that her Honour's finding that the vehicle was travelling at 70 kph on entering the bend was correct. I shall deal later with the respondent's challenge to this finding.

96 There are two limbs to the appellant's attack on the primary Judge's finding that the appellant breached his duty of care to the respondent. The first is the appellant's contention that the primary Judge applied the wrong standard. The second is the contention that the evidence did not support the finding that the appellant had breached his duty of care.

Is the Issue Open?

97 Before addressing these arguments, it is necessary to consider whether the appellant is entitled to raise these issues on the appeal. The respondent submitted that by reason of an admission in the defence, the appellant could not complain if the primary Judge misstated the scope of a supervisor's duty of care or of the finding that the appellant had breached his duty of care.

98 The admission was made in the defence in response to the following allegation in the statement of claim (para 5):

"On the date aforesaid, at a point approximately 700 metres west of the intersection of Wallanbah Road and Abbotts Road, Dyers Crossing, the [respondent] while driving the said vehicle, under instruction from the [appellant], attempted to negotiate a curve in the road at inappropriate and dangerous speed in the circumstances, whereupon she lost control of the vehicle and collided with a tree and thereupon the [respondent] suffered serious injury, loss and damage."

99 The defence admitted the collision and also admitted (para 3(a)) that the respondent " was a learner driver and that the [appellant] was her instructor ". In my opinion, the latter admission was not made as a response to an allegation as to the scope of the appellant's duty of care. The statement of claim (para 6) separately alleged that the appellant had breached his duty of care by (among other things) failing to properly supervise the respondent and failing to instruct her. The defence denied the allegations of breach of duty.

100 Read as a whole I think that para 3(a) of the defence was doing no more than admitting that the appellant was supervising the respondent's driving at the time of the collision. It was not intended to be and was not taken at the trial as an admission as to the scope of the appellant's duty of care to the respondent. The trial was conducted on the basis that the appellant was the respondent's supervisor as distinct from a professional instructor, as shown by the terms of the " stark " question posed by her Honour (at [83], reproduced at [51] above). The question identified by her Honour was whether the circumstances required the appellant's intervention " as supervisor ." It is therefore open to the appellant to challenge her Honour's finding on breach of duty.

Scope of the Duty

101 The starting point is s 5B of the Civil Liability Act , which provides as follows:

"(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm."

102 The content of the duty of care owed by the appellant to the respondent is informed by cl 12 of the Licensing Regulation. It provides as follows:

"(1) The holder of a learner licence must not drive a motor vehicle ... on a road or road related area unless:

(a) the seat next to the learner is occupied by a person who holds an Australian driver licence (not being an Australian learner licence or provisional licence) authorising the holder to drive such a vehicle ..., and

...

(4) Without limiting the liability of any other person, the owner or person in charge of a motor vehicle is guilty of an offence if he or she causes, permits or allows, or fails to take reasonable precautions to prevent, a contravention of this clause.

(5) A person accompanying a learner in a vehicle being driven by the learner on a road or road related area must:

(a) supervise the learner with respect to the driving of the vehicle , and

(b) take all reasonable precautions to prevent a contravention of the road transport legislation within the meaning of the Road Transport (General) Act 1999 ." (Emphasis added.)

103 A licensed instructor is subject to a different regulatory regime than that applicable to a voluntary supervisor such as a parent or friend of the learner driver. In New South Wales, among other things, a licensed instructor is required to give instruction in a dual control vehicle: Driving Instructors Regulation 2003, cl 12(1).

104 In Chang v Chang (1974) 48 ALJR 362, Gibbs J formulated the duty of an " instructor " (in that case a father teaching his daughter to drive) in the context of a challenge to the trial judge's finding that the instructor had not been contributorily negligent. Gibbs J said (at 364-365) that:

"There can be no doubt that an instructor, taking reasonable care for his own safety, will be alert to intervene should the inexperience of the learner driver threaten to lead to danger. The exact manner in which the instructor should act in any particular situation will of course depend on all the circumstances - for example, he might endeavour to steer the car to safety, switch off the ignition or apply the footbrake or (depending on its situation) the handbrake. There may be other action which will be appropriate to the particular case. It would be going too far to say that an instructor should always keep his foot in a position where in an emergency he might put it on the footbrake - his duty rather is one of general vigilance and readiness to take whatever action seems necessary in the circumstances."

105 The duty of a supervisor to take reasonable care for his or her own safety is not necessarily co-extensive with the duty to take reasonable care to prevent injury to the learner driver: Chang v Chang , at 364, per Barwick CJ; cf Civil Liability Act , s 5R. However, this Court has adopted Gibbs J's formulation in a case involving claims between the learner driver and her supervisor, a friend: Ricketts v Laws (1988) 14 NSWLR 311, at 324, per Hope JA (with whom Kirby P and Clarke JA agreed on this point). Ricketts v Laws was decided before the enactment of the Civil Liability Act and the Court did not find it necessary to examine the terms of the regulatory regime governing learner drivers.

106 The duty of care owed by a supervisor was considered recently by the High Court in Imbree v McNeilly . In that case, a supervising passenger was severely injured when a four wheel drive vehicle overturned. The vehicle was being driven by an unlicensed driver with little driving experience along a wide two lane dirt track between Kings Canyon and Hermannsburg in the Northern Territory. Both the driver and the supervisor observed from some distance a piece of tyre debris on the track. Instead of straddling the debris and driving over it, the driver steered the vehicle to the right, but did not brake. On reaching the far right of the road, he veered sharply to the left and accelerated. This caused the vehicle to overturn.

107 The principal question in that case was whether the standard of care owed by a learner driver to a supervising passenger is the same as that owed to other passengers or road users. The Court held, overruling Cook v Cook [1986] HCA 73; 162 CLR 376, that the content of the learner driver's duty of care is not lessened because of his or her inexperience or unlicensed status, even if the supervisor is aware of these matters. The Court upheld the trial Judge's finding that the driver was liable in damages to the supervisor for the injuries the latter sustained.

108 The joint judgment (Gummow, Hayne and Kiefel JJ, with whom Gleeson CJ and Crennan J agreed) made some observations concerning the position of a licensed passenger supervising a learner. While these observations were made in the context of analysing the standard of care owed by the learner driver to the supervising passenger, they are in my opinion of more general significance.

109 Their Honours said (at 530 [60]) that the word " instructor " may not be apt to describe the role of the supervising passenger, particularly bearing in mind that he or she may have no experience as a teacher, let along as a driving instructor. Their Honours considered that:

"The expression 'supervisor', however, is not wholly inapt, even in the case of the parent and a child who is not receptive to advice, let alone instruction. Use of the term 'supervisor' reflects some important features of the legislative regulation of learning to drive a motor vehicle on public roads."

110 The joint judgment pointed out (at 530-531 [61]-[65]) that the regulatory structure for learner drivers and their supervisors varied among the Australian States and Territories. The Northern Territory regime, for example, did not expressly require the licensed passenger to supervise the learner driver, although he or she was made personally liable for any offence committed by the learner driver. Other jurisdictions, including New South Wales, expressly required the licensed driver to supervise. Some States went further and imposed an obligation on the licensed passenger to " instruct " the learner driver.

111 Their Honours proceeded on the basis (at 532 [65]) that a licensed driver accompanying a learner driver is obliged at least to supervise the learner. On this basis (at 532 [66]), it was not necessary:

"to decide whether the ambit of the supervision that may be asserted by that licensed driver extends beyond ensuring compliance with the road law to include all aspects of the learner's operation of the vehicle. And of course if the licensed driver was bound to 'instruct' the learner, the obligations of the licensed driver would more readily be understood as encompassing all aspects of the learner's operation of the vehicle. Rather, it must be recognised that there are limits to what supervision or instruction can achieve. There are limits because no amount of supervision or instruction can alter two facts. First, unless the vehicle has been specially modified to permit dual control, it is the learner driver, not the supervisor or instructor, who operates the vehicle. Secondly, the skill that is applied in operating the vehicle depends entirely upon the aptitude and experience of the learner driver."

112 The High Court upheld (at 538-539 [90]-[96]) the findings of the trial Judge (Studdert J) that the supervisor had been contributorily negligent and that he should bear 30 per cent of the responsibility for his injuries. Studdert J had found ( Imbree v McNeilly [2006] NSWSC 680, at [84]-[86]) that the supervisor was negligent in failing to instruct the learner driver as to the conditions likely to be encountered on the road. In particular, the supervisor should have given instructions:

• not to change direction sharply on the shoulder; and
• not to accelerate when returning to the road proper.

In addition, having seen the tyre on the road, the supervisor should have told the driver to drive over the obstruction.

113 In my opinion, without being exhaustive, the following general principles can be stated in relation to the duty of care owed to a learner driver by a voluntary supervisor (as distinct from a licensed instructor):

• the duty extends to taking the precautions that a reasonable person in the position of the voluntary supervisor would take to prevent harm to the learner driver arising out of his or her driving the vehicle ( Civil Liability Act , s 5B(1)(c));
• what precautions are reasonable depends on the circumstances of the case, including the matters identified in the Civil Liability Act, s 5B(2);
• although the question of reasonableness depends on the circumstances, it is a material factor that the Licensing Regulation, cl 12(5)(b), requires the supervisor to take reasonable precautions to prevent the learner driver contravening the road transport legislation; and
• in assessing the reasonableness of precautions it is a material factor that a voluntary supervisor need not possess any qualifications (other than an unrestricted licence) and that the driving of the vehicle is primarily in the hands of the learner driver ( Imbree v McNeilly , at 532 [66]).

Was the Correct Standard Applied?

114 It is perhaps not surprising, given the way the case was argued at trial and Mr Stitt's concession (recorded in the judgment at [6]), that her Honour did not consider it necessary to refer to the authorities or state the duty of care by reference to s 5B of the Civil Liability Act and the particular characteristics of a voluntary supervisor.

115 On one reading of the judgment, the primary Judge imposed too high a standard of care on the appellant. It is not correct to say, as her Honour did (at [6]), that the appellant was obliged to adjust and vary the content of his instructions and directions to account for any changed driving conditions during the period of supervision. The relevant question is whether the appellant exercised the care that a reasonable person in his position as a voluntary supervisor would have taken in the circumstances. Applying that standard, the appellant would not necessarily be required to vary the content of his directions and instructions to account for any changed driving conditions. The appellant's contention that her Honour imposed too high a standard also receives support from the absence of reasons explaining why the finding that the respondent approached the bend at an unsafe speed having regard to her experience (at [84]), necessarily produced the consequence that the appellant had breached his duty of care as a supervisor.

116 Nonetheless, I have concluded, with some hesitation, that when the judgment is read as a whole, the primary Judge has not been shown to have misstated the relevant principles. Her Honour said at different points in the judgment that the appellant's duty was to take reasonable precautions as a supervisor to prevent breaches of the road rules or to avert threatened harm (see, for example, at [6], [47], [90]). It is also clear that her Honour appreciated that the duty of a " casual supervisor " was not the same as that owed by a professional instructor (at [6]). In addition she correctly referred to cl 12 of the Licensing Regulation as providing content to the appellant's duty of care. While it would have been preferable for the duty of care owed by the appellant as voluntary supervisor to the respondent to be stated more clearly, I am not persuaded that her Honour applied the wrong principles.

Was the Finding of Breach of Duty Correct?

117 I have already pointed out that the primary Judge seems to have assumed that once she found that the respondent entered the bend at an unsafe speed, having regard to her inexperience and the wet road surface, the appellant must have breached his duty of care by failing to instruct or guide the respondent as to the appropriate speed to enter and negotiate the bend. The critical question, which her Honour did not address, is whether in the circumstances a reasonable person in the respondent's position as a voluntary supervisor would have instructed or guided the respondent to enter the bend at a speed lower than 70 kph.

118 If the opinion of Mr Johnston is put to one side, the evidence does not support a finding that the appellant, acting reasonably as a voluntary supervisor, should have given an instruction or provided guidance in the manner suggested by the primary Judge. At a speed of 70 kph, the respondent was travelling 10 kph below the limit applicable to a learner driver and 30 kph below the speed limit applicable to licensed drivers. There is nothing to indicate to the appellant that the respondent was driving at a speed or in a manner that contravened the road transport legislation or which should have alerted the appellant that her speed was such that she should have been told to slow down before entering the bend. It cannot be suggested, therefore, that the appellant failed to take all reasonable precautions to prevent such a contravention.

119 There was no evidence of advisory or warning signs on the road to indicate that the bend on the road, or any similar configuration, should be approached with particular caution or at a speed below the relevant limit. In this respect, the present case can be contrasted with Imbree v McNeilly . In that case, the finding that the supervisor should have given specific instructions to the learner driver was based in part upon signs on the road warning of the loose surface, dust and corrugations and expressly advising that " careful driving techniques are advised ": see McNeilly v Imbree [2007] NSWCA 156; 47 MVR 536, at [94], [109], per Basten JA. The careful driving techniques required by the sign included precisely the matters about which the supervisor, having seen the sign, should have given instructions to the learner driver. As noted by the trial Judge in Imbree v McNeilly (at [85]), there was also evidence in that case that objects such as shredded tyres were often observed " if not on then beside the road " and that the supervisor had seen the tyre remnant on the road from a distance of 300 metres. Even so, the supervisor did not instruct the driver to go over the obstacle rather than swerve off the road, an instruction which, if obeyed, would have averted the accident.

120 It is true that Mrs Fancourt said that the bend in Wallanbah Road was " very deceptive " and that it was more difficult to negotiate than it appeared. But there was no evidence that the appellant appreciated any particular danger in the configuration of the bend even though he had travelled on the road in the past. Nor was there evidence that a reasonable person in the appellant's position would have considered that the bend required special precautions beyond travelling well under the applicable speed limits. Mrs Fancourt's assessment of the bend derived from experience travelling the road on a daily basis and perhaps with the benefit of hindsight having observed first hand the accident and its serious consequences. Her description of the bend as " very deceptive " reinforces the conclusion that a reasonable supervisor would not have seen the need for additional precautions than those taken by the respondent (assuming a speed of 70 kph).

121 In assessing whether the appellant breached his duty of care, it is relevant to take into account, as Mr Keramidas suggested, that the respondent had driven along this stretch of road three times in the previous 12 hours or so. In Mr Keramidas' opinion, on two of these occasions the conditions were more adverse than at the time of the accident because it was dark. As Mr Keramidas also pointed out, the appellant's statement to the police claimed that he had observed the respondent's driving capabilities during these journeys and had formed the view that she " knew what she was doing ". While the primary Judge expressed doubts about the reliability of the appellant's statement, her Honour did not reject this part of the statement.

122 The primary Judge relied on Mr Johnston's opinion for his finding that the respondent approached and entered the bend at a speed that was not reasonable in the circumstances. Mr Johnston's view, as recorded in his answer to Question 2 ([35] above), was that a speed of 70 kph in the conditions was " beginning to approach the comfort threshold for experienced drivers in wet conditions ". However, according to Mr Johnston, the presence of an inexperienced driver provided no " contingency " for the learner to accommodate the steering and speed adjustments a learner is likely to attempt on such a curve. Mr Keramidas' view was that 70 kph was a safe speed, even for a learner driver in wet conditions.

123 Mr Johnston agreed with Mr Keramidas that the design speed for the curve was about 73 kph and the " critical speed " was 124 kph for wet conditions. As Mr Keramidas explained:

"if the vehicle was travelling in the order of 70 km/h, then its progress through the bend should have been 'comfortable' and it could sustain travelling up to 124 km/h before loss of control would be inevitable."

124 The primary Judge accepted (at [18(m)]) that the critical speed for the subject bend was between 124 kph and 137 kph whilst the comfort speed was 73 kph to 75 kph. Her Honour observed (at [18(n)]) that:

"'Critical speed' (a function of friction co-efficient, the radius of the bend and speed) is understood as the point at which for any given rate of turn a vehicle will inevitably lose traction, while 'comfort speed' is understood as a speed at which a vehicle can safely traverse a bend so as to cause no discomfort or alarm to the occupants of the vehicle. They are concepts utilized by the authors of Austroads Rural Design Guide ."

125 In light of this evidence, it is not easy to see how a speed of 70 kph entering the bend, even in wet conditions and with a learner driver at the wheel, could be regarded objectively as an unsafe speed. Mr Johnston's opinion seems to have been based on the need for a wide margin of error for inexperienced drivers having regard to the research literature identifying their typical weaknesses. There was no evidence that a voluntary supervisor, acting reasonably, could be expected to have any knowledge of the matters that influenced Mr Johnston in his views about the need for a " contingency ". Having regard to the characteristics that can be expected of voluntary supervisors (as identified by the High Court in Imbree v McNeilly ), there is in my opinion no basis for concluding that such a supervisor should have appreciated and acted on the matters influencing Mr Johnston.

126 Although her Honour did not say so, it is likely that she relied on the opinions expressed by Mr Johnston in the joint report (Question 3, [35] above) and on his oral evidence. It will be recalled that Mr Johnston's view was that:

"in this particular instance [the supervisor] should have asked the learner driver to slow down into this corner as 70 km/h on [a] wet road in my opinion provided insufficient contingency to deal with potential situations that might arise as evidenced by this incident ." (Emphasis added.)

127 Mr Stitt objected at the trial to questions being asked of Mr Johnston on this issue. The objection was taken on the ground that Mr Johnston's expertise as a traffic engineer, albeit with qualifications in biomechanics and ergonomics, did not qualify him to express an opinion as to the duty of a reasonable supervisor in the position of the appellant. The primary Judge overruled the objection and there is no appeal from her ruling.

128 While the admissibility of Mr Johnston's evidence is not now in issue, it is by no means clear that his qualifications and experience equipped him to express an opinion on the issue that her Honour had to decide. The difficulty is illustrated by Mr Keramidas' opinion expressed in opposition to that of Mr Johnston. Mr Keramidas did not rely on any scientific or engineering principles but argued that Mr Johnston had elevated the role of a supervisor to that of an instructor. According to Mr Keramidas, Mr Johnston had overlooked the fact that the appellant, as a voluntary supervisor, did not have the training, experience or equipment to give the kind of continuous instruction that Mr Johnston considered to be appropriate.

129 The conflict between Mr Johnston and Mr Keramidas cannot be resolved by reference to principles of traffic engineering or biomechanics. Resolution of the conflict depends on an assessment of the precautions that a reasonable supervisor in the appellant's position would have taken in the circumstances.

130 A reading of Mr Johnston's evidence confirms that his opinion rested, in part at least, on his rejection of a distinction between the responsibilities of " professional instructors " and supervisors. He pointed to studies that demonstrated the weaknesses of professional instructors and relied on research which identified the typical deficiencies of inexperienced drivers. Mr Johnston opined that:

"when [a fully licensed driver] takes on this role [as a supervisor] he accepts he has the necessary experience to fulfil the requirements that accompany this role of teaching a learner driver the necessary skills to drive a motor vehicle."

He also stated that the role of an " instructor " (by which term he meant to include a voluntary supervisor):

"is one of a co-author who should proactively assist in shaping the manner of driving, in particular speed choice prior to negotiating roadway features not only responsive when a difficulty is encountered."

131 In addition, Mr Johnston's opinion appears to have been influenced by hindsight. He identified the need to slow down by reference to potential contingencies that might arise " as evidenced by this incident ". A person does not breach his or her duty of care merely because there are steps that he or she could have taken to avert the risk that actually materialised. As Hayne J observed in Neindorf v Junkovic [2005] HCA 75; 222 ALR 631, at 655-656 [93], in the context of an occupier's liability case:

"This inquiry about what would have been reasonable and practicable is not to be undertaken in hindsight. Nor is it to be confined to what could have been done to eliminate, reduce or warn against the danger. Asking what could have been done will reveal what was practicable. It is necessary to ask also: would it have been reasonable for the occupier to take those measures?" (Emphasis in original.) (Footnotes omitted.)

132 In my opinion, Mr Johnston's evidence is of little assistance in determining whether a voluntary supervisor in the appellant's position, acting reasonably, would have given instructions or guidance of the kind Mr Johnston considered appropriate. His opinion might well carry significant weight if, for example, a policy making body was considering whether to impose more onerous duties on supervisors than those provided in the Licensing Regulation. But as the joint judgment pointed out in Imbree v McNeilly at 530 [60], it cannot be assumed that a voluntary supervisor has experience in teaching learner drivers. Nor can it be assumed that a voluntary supervisor is familiar with the technical literature or research findings that apparently influenced Mr Johnston's counsel of caution, if not perfection.

133 In my opinion the evidence did not support a finding that the appellant breached his duty of care to the respondent by failing to instruct or guide her to reduce the speed of the vehicle below 70 kph when entering or traversing the bend. The evidence does not establish that a voluntary supervisor, acting reasonably, would have considered that the configuration of the bend or the driving conditions posed such a risk that instructions or guidance should have been given to the respondent at any stage of the journey to slow down below 70 kph as she approached the bend. The requirement of s 5B(1)(c) of the Civil Liability Act is not satisfied.

The Question of Speed

134 The respondent's case would be very much stronger if the primary Judge erred in not finding that the vehicle was travelling at 80 kph or more as it entered the bend and as it approached the point of breakaway.

Is the Issue Open on Appeal?

135 An issue arises on this occasion as to whether it is open to the respondent to contend for a finding that the vehicle was travelling at 80 kph or more. Mr Stitt argued that the respondent had accepted at the trial that the vehicle was travelling at 70 kph entering the bend and that it was therefore too late to raise the question of speed on appeal. However, the transcript of oral argument at the trial shows that Mr Toomey invited her Honour to find that the vehicle was travelling into the bend at 80 kph. Mr Toomey submitted to her Honour, as he did on appeal, that the reduction in speed was due to the " washing off " effect as the vehicle slid and fish-tailed along its path. The argument has been raised in the notice of contention and is available to the respondent on the appeal.

Matters Not in Dispute

136 There were areas of agreement or at least minimal disagreement between the experts. Her Honour took these as her starting point and it was not suggested that she was in error to do so. In consequence there are a number of matters that are not now in dispute.

137 In their joint report (Question 14) the experts concluded, on the basis of their analysis of the yaw marks, that the average speed of the vehicle during the yaw was in the order of 70 kph. They considered that the speed " may have been " a few kph faster at the start and a few kph slower at the end. The " most useful advice " they could offer was that the speed over the course of the yaw should be considered to be about 70 kph. Her Honour proceeded on this basis (at [72]).

138 The experts accepted (Question 1) that if the vehicle was under constant acceleration or coasting, its speed on leaving the bend (56 metres from the start of the yaw marks) was 70 kph. This seems to have been based on the assumption that the vehicle travelled at an average of 70 kph through the yaw marks. The experts also agreed (Question 1) that if braking occurred after the vehicle began to slip, the vehicle may have been travelling as fast as 90 kph into the bend. However, there was no physical evidence to suggest that the brake was applied after the vehicle began to slip.

139 The primary Judge accepted Mrs Fancourt's evidence that the fishtailing of the vehicle became more exaggerated as it moved through the bend and that fishtailing of this kind was consistent with acceleration being applied rather than braking. She therefore approached the case on the basis that the brakes had not been applied by the respondent after the vehicle began to slip. This conclusion has not been challenged on appeal.

140 The experts acknowledged (Question 1) that the vehicle's speed on entering into the bend could not be calculated without making additional assumptions about the subsequent control of the vehicle. They accepted that there was no physical evidence to enable them to determine the assumptions that should be made.

141 Not surprisingly, the experts agreed (Question 16) that if acceleration were applied to the vehicle prior to the side slip (that is, the commencement of the yaw), the speed of the vehicle would increase. However, they considered that Mrs Fancourt's observation that the fishtailing became more exaggerated probably related to the steering over-corrections of the respondent rather than the application of full throttle part of the way through the sequence of the vehicle's motion from the bend to the tyre marks .

Respondent's Submissions

142 The respondent's submissions in support of her notice of contention proceeded as follows:

• at the commencement of the yaw, the vehicle was travelling at least 70 kph, perhaps a little faster;
• unless the vehicle was at full acceleration after it began to slip, it must have lost some speed between the breakaway and the commencement of the yaw;
• on the primary Judge's findings (at [79]), if the vehicle was under less than full acceleration, something in the order of 6 kph to 9 kph would have been " washed off " the speed between the breakaway and the commencement of the yaw;
• the experts agreed that the exaggeration of the fishtailing observed by Mrs Fancourt probably related more to the overcorrection of the steering than the application of full throttle;
• it followed that the vehicle must have been travelling at least 6 kph faster at the breakaway than at the commencement of the yaw marks and probably 9 kph faster;
• Mrs Fancourt had estimated the speed of the vehicle as it came towards her at 80 kph;
• The totality of the evidence made it more likely than not that the vehicle travelled into and through the bend to the point of the breakaway, at about 80 kph.

The Evidence

143 As the primary Judge recorded (at [79]) Mr Keramidas' opinion was that, on the assumption that the accelerator had not been engaged, the vehicle would have lost 13 kph in speed between the irregularity in the road and the commencement of the yaw. On the same assumption, the vehicle would have lost 16 kph in speed between the apex of the bend and the commencement of the yaw. Thus, as her Honour found, on that assumption of no acceleration, the vehicle would have been travelling at about 86 kph at the apex of the bend. (The judgment says 88 kph, but this appears to be a typographical error.)

144 Mr Keramidas said that there could be " some throttle application which will reduce the speed loss of 13 kilometres per hour [over the distance between the irregularity in the road and the yaw] to a point where there is no speed loss ". He expressed the opinion that a learner driver would be quite likely to increase acceleration if the vehicle began to slip. Mr Keramidas did not say that something less than full acceleration would lead to a loss in speed of 6 kph to 9 kph over the distance between the irregularity (on the apex) and the commencement of the yaw.

145 I interpose that counsel were asked to identify any evidence which supported the primary Judge's statement that if the vehicle was under acceleration but less than full acceleration, something like 6 kph to 9 kph would have been washed off the speed. The respondent submitted that her Honour may simply have adopted the figure of 6 to 9 kph on the assumption that the level of acceleration was half way between no acceleration and full acceleration. However, if that is the basis of her Honour's reasoning, it is not supported by Mr Keramidas' evidence, as he implied that something less than full acceleration could prevent any speed at all being washed off as the vehicle slipped and fishtailed.

146 On this evidence and on her Honour's findings, the critical variable is whether acceleration was applied to the vehicle after it began to slip and, if so, how much acceleration was applied. In his statement to the police, the appellant claimed that the respondent had put her foot on the accelerator " quite quickly " as though she had mistakenly pressed the accelerator instead of the brake. On his account this action occurred after the respondent turned the steering wheel to the left following her initial over-correction to the right.

147 The primary Judge expressed reservations about the reliability of the appellant's out of court statement. While those reservations clearly had a sound basis, the appellant's account that sudden acceleration was applied firmly received support from the experts' evidence. In his first report, Mr Johnston stated that the absence of physical evidence made it very difficult to know whether the vehicle was braking or accelerating while it was fishtailing. However, he considered that " the increasing magnitude of the fishtailing may be suggestive of rapid (presumably accidental) acceleration ". Given that braking was not a factor, his evidence supports the conclusion that the respondent did indeed accelerate rapidly shortly after the vehicle began to slip, following her over corrections.

148 In his examination in chief, Mr Keramidas expressed much the same opinion:

"The accentuation of the fishtailing, as it is colloquially known, is consistent with power being applied, because as the vehicle is in the process of side slipping, application of power will in fact tend to accentuate the movement of the tail of the vehicle in each direction. Its curved path is going to be very similar, but the tail is actually going to be pushed out ... that's why Mrs Fancourt's description of the exacerbation or the accentuation of this fishtail is consistent with acceleration, but steering must have been there in order to create the ultimate yaw."

149 In cross-examination, Mr Keramidas repeated his opinion that Mrs Fancourt's evidence was indicative of harsh acceleration by the driver of the vehicle. He continued as follows:

Q. ... How do you get from Miss [sic] Fancourt's statement harsh acceleration?

A. Because she is indicating that the side slip or fishtailing motion is increasing in amplitude, in width.

Q. As it passes her?

A. Regardless of whether as it passes her or not. That is an indication of an increase in speed. An increase in speed through harsh acceleration can precipitate a loss of traction to the rear of the vehicle. Unlike a locked wheel braking condition, it will allow the vehicle to continue to yaw. So in the absence of any other description, I would say the vehicle has potentially been accelerated harshly, because -

Q. Driver error?

A. Well, in effect it would need to be, or I would be checking the vehicle ...".

150 It is true that the experts stated in their joint report (Question 16) that Mrs Fancourt's observation that the fishtailing was getting more exaggerated:

"more probably relates to the additional steering over corrections of the driver than of her having applied full throttle partway through the sequence of the vehicle's motion from the bend to the tyre marks."

151 In expressing this view, the experts appear to have been directing attention to the causes of the exaggerated fishtailing as the vehicle approached the yaw or perhaps after it had actually begun to yaw. As Mr Keramidas made clear in his oral evidence (given after the joint report had been prepared and provided to the primary Judge), he considered that the exaggerated fishtailing was consistent with harsh acceleration being applied to the vehicle, but accepted that the overcorrection of the steering contributed to the curved movement of the vehicle and its pattern of fishtailing. I do not think that the comments in the joint report are inconsistent with his oral evidence or, for that matter, with Mr Johnston's oral evidence.

152 The primary Judge considered that on the evidence she could not conclude that sufficient speed had been " washed off " between the breakaway and the start of the yaw marks to conclude that the vehicle was travelling at more than 70 kph as it approached the point of the breakaway. In my opinion, her Honour was correct to conclude that the respondent had not established on the balance of probabilities that the vehicle's speed entering and travelling through the bend to the point of the breakaway was significantly in excess of 70 kph.

153 The evidence strongly suggests that the respondent, whether through inadvertence or otherwise, applied sharp acceleration to the vehicle shortly after it began to slip and after she overcorrected the steering. The experts could not say with any precision whether the acceleration completely countered the " washing off " effect that could have occurred had the vehicle been coasting or had it been subject to constant acceleration. No finding was or could be made on the balance of probabilities that the level of acceleration applied to the vehicle was less than " full " or was such that the washing off effect would significantly reduce the speed of the vehicle. On the evidence, it would be little more than guesswork to conclude that the vehicle would have lost significant speed between the commencement of the slip at or near the apex of the bend and the commencement of the yaw 56 metres to the east of the exit from the bend.

154 I do not think Mrs Fancourt's estimate that the vehicle was travelling at about 80 kph alters the position. Understandably, she was tentative in her estimate of the speed. In her police statement she said that she

"couldn't estimate what speed it was doing other than to say it looked like around 80 kilometres per hour".

In her oral evidence in chief, Mrs Fancourt said that her estimate " would be roughly about 80 ". In cross-examination she agreed that she was not endeavouring to be precise in giving her estimate.

155 As the primary Judge noted (at [52]), Mr Johnston accepted that accurately assessing the speed of an oncoming vehicle is a " most difficult exercise ". That must be particularly so where the oncoming vehicle is not travelling in the usual linear trajectory, but is fishtailing towards the observer in an increasingly exaggerated and apparently dangerous manner.

156 I also do not think that much turns on the experts' agreement (Question 14) that the vehicle " may have been travelling a few km/h faster " at the start of the yaw than the average speed of 70 kph. While Mr Keramidas agreed with this statement, his report provided elaborate calculations to support an estimate that the vehicle's speed at the commencement of the yaw marks was 69.28 kph. Moreover, Mr Toomey expressly stated in final submissions at the trial that it was uncontroversial that the vehicle was travelling at 70 kph at the start of the yaw.

157 Even if the vehicle could be said to have been travelling at, say, 73 kph at the start of the yaw that would not establish on the balance of probabilities that it was travelling at 80 kph or more on entry into the bend or at the point of the breakaway. The primary Judge's reasons for not being satisfied that sufficient speed had been " washed away " to find that the vehicle was travelling at 80 kph would remain cogent.

Conclusion on Speed

158 For these reasons I do not consider that the respondent has established that the primary Judge should have found on the balance of probabilities that the vehicle was travelling at 80 kph or at a speed significantly greater than 70 kph when it entered and travelled through the bend to the point of the breakaway.

ORDERS

159 For the reasons I have given, the primary Judge was in error in finding that the appellant breached his duty of care as the respondent's supervisor. The respondent has not succeeded on her notice of contention.

160 In view of these conclusions, I do not think it is either necessary or appropriate to consider whether her Honour was correct to find that the respondent had not been contributorily negligent. To the extent that any issue of principle is involved in the challenge to that finding, any opinion expressed by this Court would be obiter.

161 The appeal should be allowed. Orders 1, 2 and 3 made by the primary Judge on 10 September 2010 and Orders 1, 2 and 3 entered on 8 October 2010 should be set aside. In lieu thereof the following orders should be made:

1. Verdict for the defendant.

2. The plaintiff pay the defendant's costs of the proceedings.

3. The respondent should pay the appellant's costs of the appeal but should have a certificate under the Suitors' Fund Act 1951.

162 TOBIAS AJA: I agree with Sackville AJA.

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Decision last updated: 25 August 2011