Appeal Outcome: Special leave application granted by the High Court - 8 February 2008 (S385/2007); Special leave application referred to the Full Court - 8 February 2008 (S392/2007); Appeal allowed - 28 August 2008 - Imbree v McNeilly; McNeilly v Imbree - [2008] HCA 40 - HCA 2008 case summary

Appeal Outcome: Special leave application granted by the High Court - 8 February 2008 (S385/2007); Special leave application referred to the Full Court - 8 February 2008 (S392/2007); Appeal allowed - 28 August 2008 - Imbree v McNeilly; McNeilly v Imbree - [2008] HCA 40 - HCA 2008 case summary — Zoe

[60]

2 July 2007 McNEILLY & ANOR v IMBREE Judgment 1 BEAZLEY JA: I have had the benefit of reading in draft the judgment of Basten JA. I agree with his Honour's conclusions on liability and damages and with his reasons relating to damages. I do not agree with his Honour's conclusion on contributory negligence. His Honour's extensive review of the facts and the law enables me to express my views briefly. 2 As to liability, I would take a slightly different approach to both his Honour and the trial judge. 3 The accident in which the respondent was injured occurred when the appellant was driving a Toyota LandCruiser in an easterly direction on Larapinta Drive towards Hermannsburg in the Northern Territory. Larapinta Drive was a gravel road which contained corrugations. The first appellant (the appellant), who at the time of the accident was aged 16, held neither a driver licence nor a learner licence. The respondent was seated in the passenger's seat beside the appellant. The trial judge found and, it is accepted on the appeal, that the respondent was acting in the capacity of a driving instructor. 4 The accident occurred in circumstances where the appellant observed a shredded tyre in front of him on the roadway about 50m away. When he was about 30m away from the tyre, the appellant steered the vehicle to the left. He felt the tyres of the vehicle dig into the sand on the left-hand, nor northern, side of the road. The trial judge recorded at [13] that the appellant tried to correct the vehicle to steer off to the right and he accelerated. The appellant said the vehicle swerved to the right more "radical or quicker" than he expected. He said: "I think at that stage because I've panicked, I've accelerated the vehicle. It swerved off to the right like I said. Pretty much as soon as it swerved off to the right, I noticed there was a ditch in front of me being the right-hand side of the road. Once again as soon as I saw the ditch I've again correct the vehicle to the left, kept accelerating at that time." 5 His evidence continued: Q. How hard did you steer back to the left when you saw the ditch on the right-hand side of the road approaching? A. Quite sharply because at that stage I was panicking because the vehicle actually swerved - was about to swerve off the road, so I've panicked, accelerated the vehicle and turned the car to correct it."

[61]

It was at that stage that the vehicle rolled over. 6 The trial judge, Studdert J, essentially accepted the appellant's account of the accident. His Honour concluded at [39]: "… it was the sharp change of direction to the left after the [appellant] had crossed to the incorrect side of the road and to the edge of it which, when coupled with the acceleration, caused the vehicle to move into a position where it overturned." 7 His Honour was aided in this conclusion by the expert evidence of Mr Wingrove. His Honour referred to Mr Wingrove's report dated 31 January 2006, where Mr Wingrove had commented upon the significance of the acceleration at the time that the appellant steered to the left, as this was what caused the vehicle to oversteer. Mr Wingrove expressed the opinion that it was the acceleration which was the initiating error that caused the accident. 8 Having determined the cause of the accident, his Honour then determined that the appellant had been negligent. He said, at [49] that the deliberate acceleration by the appellant introduced an element of carelessness over and above what could be attributed merely to inexperience. In reach that conclusion, and having regard to the inexperience of the appellant, his Honour applied the principles stated by the High Court in Cook v Cook (1986) 162 CLR 376 at 382; [1986] HCA 72. The acceleration to which his Honour referred in this finding, was acceleration back towards the centre of the road from the southern edge, not the initial acceleration when the vehicle was on the left-hand, or northern, side of the road and the appellant felt the wheels catch in the soft edge. His Honour's finding of negligence was based at least in part upon the evidence that the appellant had been instructed not to attempt to accelerate out of a problem and also because of the appellant's answer, that commonsense would have suggested that the thing to do was to take his foot off the accelerator. 9 The appellant's driving experience was not only very limited in general terms, but his experience driving in the unusual and challenging circumstances of outback Australia was only of approximately two and a half hours duration. During that time, he had driven well. The appellant had had no formal driver education. He had been "told" by his grandmother, who had taken him driving in sand hills in Sydney, "never to accelerate" out of a problem, a matter to which I have referred above. That was the fundamental error that the appellant made here. The respondent did not reinforce this basic driving tenet by instruction at any time during the trip which ended in the occurrence of the accident. 10 In seeking to answer the question whether the appellant's acceleration was born of inexperience or involved a breach of they duty of care owed by the appellant to the respondent, it is relevant to have regard to the fact that the appellant knew, as part of his general appreciation of what should and should not be done in the course of driving in the spectrum of conditions that confront any driver, for example, rain, slippery roads and non-bitumen road conditions, that he should not accelerate out of trouble. 11 It is also important to keep in mind precisely what the appellant said. He said that having driving into the soft edge of the road, "the vehicle reacted … in a more radical or quicker way than I expected". This evidence was important because it indicated that the appellant was accelerating at that time. The expert evidence of Mr Wingrove was that the principal error made by the appellant which caused the accident was "the acceleration" out of the soft edge which caused the vehicle to oversteer. The "panic" of which the appellant gave evidence came after this. He said that as he swerved back to the right, he noticed a ditch, so he corrected the vehicle to the left and kept accelerating. He said he steered back to the left "quite sharply because at that stage I was panicking" (emphasis added). 12 In my opinion, therefore, the negligence occurred, or at least commenced, earlier than the time found by the trial judge. In my opinion, in accelerating as he did at that time, the appellant drove the vehicle carelessly in a way which was "over and above what could be attributed merely to inexperience": see Cook v Cook at 389. He knew that he should not accelerate out of a problem and he also appreciated that it was commonsense not to accelerate. There was no danger of hitting anything when the appellant moved to the left which required moving the vehicle quickly. There was no other immediate danger that was confronting the appellant. 13 Basten JA has found that the negligence commenced at an even earlier point of time. I do not consider that view to be wrong. Indeed, the differences in the finding as to negligence to be found in the decision of the trial judge and that of Basten JA and my own, may well demonstrate that the appellant's actions should be viewed in their totality from the time that the appellant first saw the rubble on the road. On that basis, accepting that the negligence occurred as Basten JA finds, I also agree with his Honour's reasons that the appellant's initial manoeuvre in moving too far to the left, fell within the field of basic driving skills that the appellant executed carelessly, so as to make him liable in negligence to the respondent. 14 The approach which I have taken is slightly different from the finding of the trial judge. For that reason, it is open to review his Honour's assessment of contributory negligence. In doing so, I approach the matter on the basis that the assessment of contributory negligence is an evaluative exercise upon which minds may differ and in respect of which an appellate court should exercise care before interfering with an assessment made by a trial judge. See generally: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34. In Podrebersek the High Court explained what was involved in the task of assessing contributory negligence, at 494, in these terms: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gy0psum Mines Ltd. (1953) AC 663 at 682; Smith v McIntyre (1958) Tas SR 36 at 42-49 and Broadhurst v Millman (1976) VR 208 at 219 and cases there cited." 15 In my opinion, it was incumbent upon the respondent to provide adequate instruction to the appellant in relation to the care he needed to take, having regard to the conditions in which he was driving. Those instruction should have included an instruction not to accelerate out of a problem. The vehicle was being driven on a gravel road which had sandy edges and corrugations. It was foreseeable that conditions or circumstances would be encountered which might take an inexperienced driver by surprise or in respect of which an inexperienced driver may not have had the full complement of driving skills to competently deal with. Such instruction, if given, would have been a reinforcement of what the appellant already knew. Nonetheless, a young learner driver, driving in difficult and strange conditions, would, in the normal course, have needed such a matter to be reinforced, so that it would be at the forefront of his mind should an occasion of difficulty arise, as it did here. In those circumstances, I am of the opinion that it should have been found that the appellant and respondent were equally culpable, so that his Honour should have assessed contributory negligence at fifty per cent. 16 TOBIAS JA: In this matter I have had the benefit of reading in draft the judgments of Beazley and Basten JJA. Each of their Honours has rejected the challenge by the first appellant (the defendant) to the primary judge's finding that he had breached his duty of care to the respondent (the plaintiff). However, each has approached that question slightly differently. 17 With some regret, I would uphold the defendant's challenge to the primary judge's finding of liability. I would therefore have allowed the defendant's appeal, set aside the primary judge's orders and, in lieu, ordered that the plaintiff's proceedings against the defendant be dismissed with costs. However, as I am in the minority on the issue of liability, it is unnecessary to propose formal orders. 18 In [55] of his judgment, Basten JA has conveniently set out the issues calling for determination on the appeal. As to the first issue, the primary judge's finding on liability, I agree with Basten JA with respect to sub-issues (a) and (b) but disagree with him and Beazley JA on sub-issue (c). I also agree with his Honour with respect to the various issues raised with respect to the primary judge's assessment of damages. As to the issue of contributory negligence I agree with Basten JA's resolution of sub-issue (a). 19 Unfortunately, Beazley and Basten JJA disagree with respect to sub-issue (b) although both accept that the primary judge's assessment of the plaintiff's contributory negligence at 30% was erroneous. Basten JA has therefore concluded that the plaintiff should bear two thirds of the responsibility for the accident whereas Beazley JA has concluded that he should bear 50% of that responsibility. 20 Notwithstanding that I am of the opinion that there should be judgment for the defendant on the issue of liability, the fact that I am in the minority requires me, in accordance with recent authority, to determine whether I agree with Beazley JA or Basten JA as to the proportion of responsibility which the plaintiff should bear as a consequence of his contributory negligence. However, before doing so, I should state my reasons for concluding that there was no breach by the defendant of his duty of care to the plaintiff. 21 The facts relevant to the issue of liability have, as Beazley JA acknowledges, been extensively set out in Basten JA's judgment. It was generally common ground that the standard of care (there being no issue that the defendant owed the plaintiff a duty of care) owed by the defendant to the plaintiff was, in the exceptional circumstances of the present case, that articulated by the High Court in Cook v Cook (1986) 162 CLR 376. The relevant principles established by that decision are set out in [67] and [68] of Basten JA's judgment. His Honour expounds the reasons for the plaintiff's success in that case in [71] and [72] of his judgment. 22 As Basten JA observes (at [69] and [70]), the decision in Cook has not escaped academic criticism. It has also been the subject of adverse (albeit muted) judicial comment. Thus in Radford v Ward (1990) Aust. Tort Reports ¶81-064, Murphy J, sitting in the Full Court of the Supreme Court of Victoria, observed (at 68,350): "I would be loath to accept the proposition that - simply because in any particular case the driver of a motor vehicle may be known by a would-be passenger to be less skilled, experienced or capable than the norm - in accepting gratuitously a lift, the passenger is owed a lesser standard of care than that owed by the hypothetical reasonable driver. Such a proposition would, I think, introduce chaos into the law of negligence generally." 23 After citing passages from the joint judgment in Cook at 383 and 387 which asserted that special and exceptional facts or circumstances may transform the relationship between a particular driver and a particular passenger into a special or different class or category of relationship which either expanded or confined the standard of skill or care which was to be reasonably expected of a driver in that special class or category, Murphy J further observed (at 68,352): "With the greatest respect, I find a certain lack of satisfaction in the Court's determination that the impugned conduct in Cook v Cook which caused the accident breached the lesser or reduced standard of care applicable in the 'special and exceptional' circumstances. In the case of a driver affected by alcohol, this difficulty must, I believe be accentuated. If it be assumed that a Cook v Cook lesser standard of care could apply in the case of a driver noticeably affected by alcohol so that all that the passenger could expect was that the driver would exercise the standard of care for his safety of a driver noticeably affected by alcohol, the circumstances in which that standard of care would be seen to have been breached so as to cause an accident are difficult to envisage. From a practical point of view, the measurement of the degree to which the driver was seen to be so affected, and the parameters of the standard of care none the less appertaining in the circumstances, as well as the difficulties of an objective judgment whether or not the conduct causing the accident in the circumstances breached that lesser standard, would appear to me to introduce an air of complete unreality that should be avoided in this branch of the law." 24 In the joint judgment in Cook at 388 their Honours had said that "the appellant's known incompetence and inexperience as a driver was a controlling element of the relationship of proximity between the parties."

[62]

The doctrine of proximity has for some time now been rejected by the High Court as the touchstone of a duty of care. This no doubt prompted the recent suggestion by McHugh J in Joslyn v Berryman (2003) 214 CLR 552 that Cook may require reconsideration. His Honour relevantly observed (at 563-564): "29. What then of the issue of no breach of duty in cases where the passenger knows that the driver's ability is impaired by alcohol and suffers injury as the result of that impairment? Has it survived the judicial and legislative demise of the doctrine of volenti? While the reasoning of this Court in Cook v Cook and Gala v Preston stands, the answer must be: 'Yes". The plea of no breach of duty - perhaps even a plea of no duty in an extreme case - is still open in the case of a passenger who accepts a lift with a driver known to the passenger to be seriously intoxicated. In Cook and Gala , this Court applied the now rejected doctrine of proximity to hold that in exceptional cases the content of the duty of care owed by a driver to a passenger varies in proportion to the passenger's knowledge of the driver's capacity to drive. In Cook , the court held that, where the passenger has invited an inexperienced and unlicensed driver to drive, the standard of care "is that which is reasonably to be expected of an unqualified and inexperienced driver in the circumstances in which [the driver] is placed". In so holding, the majority judgment relied on the no breach of duty statements contained in the judgments of Latham CJ and Dixon J in Joyce and the judgment of Webb J in Roggenkamp . … 30. Now that this Court has rejected the doctrine of proximity, it may be that it would no longer follow the reasoning in Cook and Gala . Moreover, the notion of a standard of care that fluctuates with the sobriety of the driver is one that tribunals of fact must have great difficulty in applying. While Cook and Gala stand, however, they are authorities for the proposition that, in special and exceptional circumstances, it would be unreasonable to fix the standard of care owed by the driver by reference to the ordinary standard of care owed by a driver to a passenger. …" [footnotes omitted] 25 In applying the principles in Cook to the facts of the present case, Basten JA observes (at [79]) that in Cook the acceleration required to pass between the parked vehicle and the fence, combined with the failure of the defendant in that case to see the stobie pole, was understandably described as more than, and separate from, carelessness resulting from inexperience. 26 In the present case however, his Honour observes that it was the acceleration combined with over-correction of the steering that caused the vehicle being driven by the defendant to roll. I agree with his Honour that over-steering would appear to be a typical reaction due to inexperience which places the present matter in a different category to the failure of the defendant in Cook to see the stobie pole in front of her vehicle. I would also agree with Basten JA's observations (at [79]) that "these factors are inconsistent with a conclusion that the deliberate acceleration which immediately led to the vehicle rolling, was caused by some superimposed or independent negligent conduct, over and above that which resulted from the inexperience of the driver. Rather, the defendant's evidence as to his panic, after the vehicle swerved across the road to the right, is the kind of response which was reasonably to be expected from a driver with that level of experience, as known to the plaintiff. It would not constitute a breach of the relevant standard of care owed by the defendant specifically to the plaintiff." 27 Nevertheless Basten JA considers that in other aspects of the defendant's driving there was carelessness beyond that associated with inexperience. Relevantly, his Honour concluded (at [81]) that although there was no basis to infer negligence on the defendant's part in taking what may have been seen as a cautious approach and steering to avoid the debris on the carriageway, the same could not be said of his failure to keep the vehicle on the carriageway. In particular, the fact that the near-side wheels left the carriageway demonstrated a lack of reasonable care. According to his Honour, that may have happened either because the defendant did not steer to the left until he was some 30m from the tyre debris or simply because he steered too far to the left and then failed adequately to correct the course of the vehicle. 28 Having so concluded, his Honour nevertheless acknowledges (at [83]), and I agree, that it could be said that the defendant's initial swing to the left allowing the near-side wheels to leave the carriageway was the act of an inexperienced driver. However, he then says that "some weight must be given to the evidence that on three previous occasions [the defendant] had demonstrated that he could exercise basic driving skills on unsealed roads without much by way of instruction. The initial manoeuvre fell, in my view, within the field of basic driving skills; but it was executed carelessly. It therefore constituted careless driving for which the defendant should properly have been held liable." 29 Accordingly, his Honour found the negligence for which the defendant should be held liable was that which involved his veering off the road to the left when seeking to avoid the tyre debris and in so doing failing to keep the vehicle on the carriageway. That was not the manoeuvre of a driver with only the limited skills and experience of the defendant. However, the acceleration and over-steering by the defendant which occurred when the vehicle had swung across towards a ditch on the right-hand side of the road and his further acceleration and over-steering of the vehicle to the left in order to avoid the ditch did not breach the standard of care of such a driver. 30 It is to be noted that when dealing with the issue of contributory negligence, his Honour (at [108]) observed that when the defendant veered off to the left-hand side of the road upon seeing the tyre debris, a clear instruction from the plaintiff not to accelerate in such circumstances and to steer gently back onto the carriageway would have avoided the disaster which ensued - that being the kind of instruction which an inexperienced driver such as the defendant should have received. I agree. But in my opinion the initial manoeuvre, as his Honour refers to it, of the defendant in veering left to avoid the tyre debris and thus allowing the near-side wheels of the vehicle to leave the carriageway coupled with his perception that he had thereupon lost traction because of the soft road shoulder thus causing him to panic and accelerate was, as his Honour also acknowledges, the act of an inexperienced driver. 31 It is true that on three previous occasions the defendant had driven the vehicle on unsealed roads for relatively short periods of time without mishap. However, with respect, I do not see how that fact could have endowed him with sufficient skills as to outweigh his general inexperience in driving on outback roads. In essence, Basten JA's finding is that so far as the defendant's ability to avoid the tyre debris in the middle of the road was concerned, he should not be regarded as being inexperienced. However, in my respectful view the initial manoeuvre that the defendant undertook - to veer suddenly to the left permitting his near-side wheels to leave the carriageway - was precisely the type of reaction to a perceived obstruction in the road one would expect to be borne out of inexperience. I see no relevant distinction between the defendant's over-steering to the left to avoid the debris, thereby allowing his near-side wheels to leave the carriageway and the reaction to his erroneous perception that his wheels had lost traction by accelerating and thereby causing the vehicle to oversteer to the right. 32 Accordingly, although I agree with Basten JA that the defendant's initial manoeuvre was executed carelessly, I cannot agree that his previous very limited driving experience on unsealed outback roads without apparent instruction was sufficient to take him outside the category of an unskilled and inexperienced driver in his execution of that manoeuvre. This being so, and there being, therefore, no independent or superimposed negligence in the Cook sense, the relevant standard of skill and care to which the defendant was required to conform for the benefit of the plaintiff when executing the initial manoeuvre was only that of an unqualified and inexperienced driver. 33 Beazley JA, as she indicates in [2] of her judgment, has taken a slightly different approach to that of Basten JA. Her Honour concludes (at [12]) that in accelerating as he did when he sought to correct the vehicle as it swerved back to the right hand side of the carriageway towards the ditch, the defendant drove the vehicle carelessly in a manner which was over and above what could be attributed merely to inexperience. This was because he knew, having been told by his grandmother who had taken him driving in the sandhills of Kurnell, never to accelerate out of a problem. 34 However, in my respectful opinion the fact that the defendant had been so informed by his grandmother was not capable of trumping his clear inexperience when driving on unsealed roads which, as her Honour notes in [9], comprised a total of approximately 2½ hours in what she referred to as "the unusual and challenging circumstances of outback Australia". Her Honour also relied upon the defendant's evidence that having driven into the soft edge of the road "the vehicle reacted … in a more radical or quicker way than I expected" and that it was only after he accelerated out of the soft edge thereby causing the vehicle to oversteer to the right that he panicked. 35 The relevant part of the defendant's evidence is contained in the following exchange: "Q. How far from the shredded tyre debris were you when you first noticed it? A. I'd say approximately 50 metres. Q. What did you do then? A. As soon as I noticed the debris, I was not in the centre of the road but slightly off to the right on the left-hand side of that road. As soon as I noticed the debris, I corrected the vehicle. Q. When you say you corrected it, what did you actually do in terms of speed, direction or anything else? A. Okay when I noticed the debris, I had about roughly 2 seconds before it was actually next to the vehicle. I'd say I reacted when that piece of debris was approximately 30 metres from the vehicle by steering the vehicle to the left of the road. Q. How far left did you go? A. I went off to the left-hand side of the road. There was - you couldn't see it, but there was sand that blended in with the sides of the road. Then the vehicle, I could feel the vehicle react by digging into the sand. By this stage the vehicle was past the debris. When I noticed that the vehicle sort of sunk into the sand, I again tried to correct the vehicle by steering off to the right to get out of it. Q. How sharply or otherwise did you steer to the right to try to get out of the sand? A. The problem being because I wasn't expecting the vehicle to react when it dug into the sand, I accelerated when I felt the vehicle dig into the sand and swerved the vehicle to the right. Q. What path did the vehicle then follow? A. The vehicle reacted obviously to my judgments in sort of a more radical or quicker way than I expected, being swerving to the right. I think at that stage because I've panicked, I've accelerated the vehicle. It swerved off to the right like I said . Pretty much as soon as it swerved off to the right, I noticed there was a ditch in front of me being the right-hand side of the road. Once again as soon as I saw the ditch, I've again corrected the vehicle to the left, kept accelerating at that time. Q. How hard did you steer back to the left when you saw the ditch on the right-hand side of the road approaching? A. Quite sharply because at that stage I was panicking because the vehicle actually swerved - was about to swerve off the road, so I've panicked, accelerated the vehicle and turned the car to correct it ." (Emphasis added) 36 It is apparent from this evidence that panic had set in from the moment the near-side wheels of the vehicle dug into the sand (as the defendant then understood had occurred) and that his acceleration, which caused the vehicle to swerve to the right, was borne of that panic which continued as he saw the ditch in front of him on the right hand side whereupon he accelerated again, causing the car to oversteer to the left and ultimately roll. All this would have occurred in a few seconds. 37 Accordingly, given Beazley JA's approach, in my respectful view the whole of the defendant's reaction from the time he unexpectedly perceived the near wheels of the vehicle digging into the sand to the left of the carriageway up to and including his acceleration of the vehicle whilst turning to the left immediately before it rolled, was borne not only out of inexperience but also out of panic. Of course, being in an unexpected situation in respect of which he had had no prior experience, it is unsurprising that that inexperience caused him to panic and over-react in the manner in which he did. 38 Accordingly, I am unable to agree with Beazley JA that the defendant's initial acceleration after his near-side wheels left the carriageway constituted the careless driving of the vehicle in a manner which was over and above what could be attributed to his inexperience. As I have indicated, in my opinion the fact that some time previously he had been told by his grandmother never to accelerate out of a problem would, understandably, have been overcome by his state of panic upon perceiving that his near-side wheels had dug into the soft shoulder of the carriageway causing him to react by accelerating. 39 The primary judge found liability on a slightly different basis to both Beazley and Basten JJA. At [48] and [49] of his judgment, his Honour found that in accelerating as he did in conjunction with his steering sharply back towards the centre of the road from its southern (left hand) edge, the defendant behaved with carelessness over and above what could be attributed merely to inexperience. Further, just as the deliberate acceleration in Cook introduced an element of carelessness over and above what could be so attributed, so too was the defendant's deliberate acceleration in the present case. 40 It is true that in Cook the High Court considered that the driver's "extraordinary action" in accelerating because she thought she would hit the parked car if she "didn't put speed on", was held to constitute an element of carelessness over and above what could be attributed merely to inexperience. It was accepted that her act of deliberate acceleration was the cause of the accident. It seems that their Honours considered that the absence of any suggestion of skidding was also relevant to that finding. Their Honours made it clear that having seen the need to avoid the parked car, the defendant's deliberate acceleration was not to be regarded as the result of her inexperience. 41 On the other hand, in the present case the defendant perceived the need to extract the near-side wheels of his vehicle out of the soft sand, reacting to that perception by deliberately accelerating. I would not regard such a reaction as "extraordinary" (as it was so held to be in Cook) in the circumstances of the present case because the act of acceleration, whether deliberate or accidental, was borne of panic out of inexperience. 42 Accordingly, being true to the binding authority of the reasoning in Cook, for the foregoing reasons I am unable to agree with either the primary judge, Beazley JA or Basten JA that the defendant was in breach of his duty of care to the plaintiff. It is for those reasons that I would uphold the appellant's challenge to the primary judge's finding of liability against him. 43 The position, therefore, is that I am in a minority on the issue of liability but my colleagues differ as to the extent to which the plaintiff should be held guilty of contributory negligence. As I have indicated, the primary judge assessed the plaintiff's share of responsibility at 30%, Basten JA at 66% or two thirds and Beazley JA at 50%. As no view commands a majority, it is therefore unfortunately up to me. 44 This vexed problem recently arose before this Court in Skulander v Willoughby City Council (2007) NSWCA 116. In that case the judgments circulated in draft revealed a majority of the Court (also Beazley JA and Basten JA) finding negligence proved with firm disagreement between their Honours as to the discount for contributory negligence. Mason P was of the view that negligence had not been proved. Nevertheless, his Honour was faced with the vexed question as to the disposition of the appeal in the same circumstances as I find myself in the present case. 45 With the concurrence of the whole Court in that case, the President canvassed the relevant issues including the theoretically available options available to him as the dissenting member of the Court: see at [45]-[74]. I acknowledge the wisdom of his Honour's discussion of the problem and would specifically refer to his observations (at [75]) that "[t]he factors that embolden me to take the matter beyond my preferred conclusion that the appeal should be dismissed with costs are: my acknowledgement that in this, as in all matters, I may be wrong; my respect for the views of my colleagues; and the fact that it was common ground in the appeal that if negligence was found, there would have to be some reduction of damages for contributory negligence."

[63]

I endorse and respectfully adopt these sentiments as my own without reservation. 46 Accordingly, I am required to address the question of contributory negligence on the assumption that my conclusion as to breach of duty is wrong (as the majority would hold). The mental difficulty in doing so is articulated by Mason P in Skulander at [71]. Nevertheless, it is necessary to proceed on that basis notwithstanding the difficulties involved. Furthermore, it is necessary to do so with a view, if possible, to agreeing with one of my colleagues rather than proposing a third, or more accurately a fourth, percentage by way of deduction for the plaintiff's contributory negligence. 47 I have carefully considered the reasoning of both my colleagues noting that the difference between them is not substantial: 50% against 66%. Both of their Honours have found that it was the absence of instruction from the plaintiff in the technique of bringing the vehicle safely back onto the carriageway that significantly contributed to the accident. At the end of the day, my own reasoning on the issue of contributory negligence is closer to that of Basten JA than Beazley JA. Had the plaintiff instructed the defendant on approaching the tyre debris to simply drive over it or, if he intended to go around it, to ensure he kept his near-side wheels off the road shoulder, the accident would have been avoided. I also agree with Basten JA at [108]) that it would have been avoided if the plaintiff had instructed the defendant when his near-side wheels left the carriageway to steer gently back onto the hard road surface and not to accelerate. This being so, the greater proportion of responsibility for the accident falls on the plaintiff rather than the defendant. For that reason I cannot accept that they were equally culpable. 48 Accordingly, for the foregoing reasons I agree with Basten JA that the plaintiff's contributory negligence should be assessed at two thirds. 49 BASTEN JA: On 3 April 2002, Mr Paul Imbree ("the plaintiff") was seriously injured when the four-wheel drive vehicle in which he was travelling rolled whilst it was travelling along Larapinta Drive (part of the Mereenie Loop Road), west of Alice Springs in the Northern Territory. At the time of the accident, the travellers in the vehicle included the plaintiff and his two sons, a friend, Mr Ben Watson and a sixteen year old, Jesse McNeilly, who was a friend of a son of the plaintiff. It was Jesse McNeilly ("the defendant") who was driving at the time of the accident. The defendant lost control of the vehicle on the gravel surface of Larapinta Drive. At the time of the accident he had no driving licence and had limited experience driving on gravel roads. No other vehicle was involved in the accident. 50 The plaintiff at that time worked for Qantas Airways Ltd and the vehicle was owned by Qantas. Proceedings were brought by the plaintiff in the Supreme Court against both the defendant and Qantas Airways. Apart from the fact that it owned the vehicle and appeared to have provided it to the plaintiff as part of his remuneration package, it had no involvement in the accident. No specific defence was run on behalf of Qantas and it appears to have been assumed at all stages that if the defendant was liable judgment could also be entered against Qantas on the basis of its vicarious liability. The correctness of that conclusion was not in issue and, for present purposes, it is convenient to refer to Mr McNeilly as the defendant. (He was referred to by the trial judge, Studdert J, as "the first defendant".) 51 It was also not in dispute at the trial, or on appeal, that the plaintiff was in some sense the instructor, supervisor or overseer of the defendant's driving: different terms were adopted at different stages. However, the plaintiff's evidence was that he did not give any material instructions to the defendant in relation to his driving. 52 As a result of his injuries, the plaintiff suffers from tetraplegia. The trial judge upheld his claim against the defendant in negligence and assessed his damages in an amount a little over $11 million. He assessed contributory negligence on the part of the plaintiff at 30% and, apparently by agreement, a judgment was given in an amount of $7,780,703, in reduction of which the defendant was given credit for payments by the insurer of $2,614,557: see Imbree v McNeilly [2006] NSWSC 680. 53 The defendant appeals in relation to the finding of liability, the calculation of contributory negligence and various items of loss included in the assessment of damages. 54 The plaintiff, in his cross-appeal, has contended, in effect, that liability should be upheld, but on a different basis to that found in the reasoning of the trial judge which, he concedes, would require a departure from High Court authority which is a course not available in this Court. He also contends that the finding of contributory negligence should not have been made, that damages should have been assessed by reference to common law principles, rather than under the Motor Accident Compensation Act (NT) ("the Territory Compensation Act") and complains in respect of two items of loss which he failed to recover. 55 The issues which arise may be identified as follows:

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Liability: joint illegal enterprise 57 There may be cases in which the fact that a plaintiff and a defendant are engaged in a joint criminal enterprise will prevent one recovering in negligence for the careless act of the other. However, it is clear that the circumstances in which such conduct will provide the defendant with a complete defence are quite limited. They are not helpfully identified by the expression "engagement in a joint illegal enterprise". For example, the circumstances may range from a case of an armed robbery where one co-offender accidentally shoots the other, to a case in which a person is injured whilst leaning out of the window of a tramcar, in breach of a regulation. Such examples were discussed by Kitto J in Smith v Jenkins (1970) 119 CLR 397 at 401-402. However, where, as in the present case, the illegality consists of a breach of a statutory provision "the true inquiry is whether it is the intention of the statute penalizing the particular conduct to affect civil responsibility": Henwood v The Municipal Tramway Trust (South Australia) (1938) 60 CLR 438 at 467 (Dixon and McTiernan JJ). In Smith v Jenkins, after referring to Henwood, Windeyer J stated at p 416: "If a plaintiff's own conduct was a contravention of a law designed to ensure that he, and others similarly situated, would be safe from danger, and if this conduct was a factor in producing his injury, he may be found guilty of contributory negligence or of being the author of his own misfortune. That however is very different from saying that, simply because a man was a wrongdoer, he can have no remedy at law for harm done him. That proposition cannot possibly be sustained." 58 Henwood was applied by Sheppard J in Matthews v McCullock of Australia Pty Ltd [1973] 2 NSWLR 331 at 335-336. In Matthews, the plaintiff was a motorcycle rider, who had been disqualified and was, accordingly, unlicensed. He suffered injury when hit from behind, while stopped at traffic lights, by a car owned by the defendant. His Honour held that the plaintiff was not precluded from recovery, by reason of the statutory scheme for licensing and disqualification of drivers: the case was not, of course, one involving any relationship between plaintiff and defendant which allowed the plaintiff to know of the defendant's status. 59 The defendant in the present case was old enough to obtain a learner's permit, which would have permitted him to drive the vehicle with a qualified driver, such as the plaintiff. He did not have one, although shortly before the start of the trip he had tried, but failed, the written test required to obtain the permit. He did not require driving experience or training in order to obtain the permit nor, in particular, any experience on gravel roads. Thus, the causal connection between the breach of the law and the accident was quite limited. Although the defendant tried to make some mileage from the concession by the plaintiff that he allowed the defendant to drive on a gravel road, rather than a bitumen road, because the chances of discovery by the police were less, that fact takes the matter no further in terms of the principle underlying the defence of illegality, however that may be expressed. 60 No attempt was made to derive from any statutory provisions an underlying purpose or policy which might suggest that a person in charge of a vehicle should in all circumstances be deprived of a civil claim in damages which might otherwise be available to him as a result of the negligence of the driver. Indeed, no real attempt was made to identify any particular statutory provision as relevant to this case. However, it may be noted that Part III of the Territory Compensation Act provides a scheme for payment of benefits, on a no-fault basis, to the victims of motor accidents in the Territory, at least in relation to a person who was a resident of the Territory at the time of the accident. Pursuant to s 9(1)(d) of that Act, an unlicensed driver was deprived of entitlement to a benefit under ss 13 and 17, which provided for compensation for loss of earning capacity and compensation for impairment respectively. A non-resident of the Territory at the time of the accident is not entitled to such benefits (s 7) and was therefore not subject to the exception. As will be seen below, and by way of contrast, a non-resident was entitled to claim damages subject to express limitations of which the exception referred to above was not one. 61 The importance of close attention to the relevant statutory scheme, in circumstances where a liability or immunity is said to flow from a failure to comply with the scheme can hardly be over-emphasised. Yet the present defence was said to arise as a matter of common law principle, without clear identification as to whether it was New South Wales or Northern Territory law which was relevant. His Honour did not accept this defence to liability. The challenge to his Honour's findings should be rejected.

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Voluntary assumption of risk 62 The second basis upon which a complete defence was said to arise was that commonly identified by the Latin phrase volenti non fit injuria. The doctrine of voluntary assumption of risk is frequently sourced, in this country, to The Insurance Commissioner v Joyce (1948) 77 CLR 39, where three members of the Court (Latham CJ, Rich J and Dixon J) expressed somewhat different views as the nature and effect of the defence. As Dixon J noted, there was authority for treating some cases which seem to fall within such a defence as cases of contributory negligence, which was itself, until the Law Reform (Contributory Negligence) Act 1945 (UK) and its legislative progeny, generally a complete defence in Australia and the UK: see discussion in Joyce at p 46 (Latham CJ) and p 58 (Dixon J). 63 However, as Joyce illustrates, the volenti principle can also be treated as one in which the standard of care is reduced by the special relationship between the plaintiff and the defendant, to a point where it either ceases to exist or cannot readily be breached. Considered in this light, the voluntary assumption of risk was not a defence, but rather resulted in a reduction in the standard of care. This was the approach adopted by the High Court in Cook v Cook (1986) 162 CLR 376, which was applied by the trial judge in this case. Cook did not involve intoxication, as Joyce did. As will be seen below, the circumstances of Cook were similar to those in the present case and are not consistent with the operation of an absolute defence of volenti in such circumstances. Accordingly, in this case the plaintiff's claim must be assessed on the basis of the appropriate standard of care to be applied in the case of an inexperienced driver and his instructor or supervisor; and, where the instructor himself had a role to play both in the decision to allow the defendant to drive and in the supervision of his driving, the instructor's own conduct may be relevant to the apportionment of responsibility for the accident. Of course, no question of contributory negligence will arise unless the conduct of the defendant was a breach of the standard of care required of him in the circumstances. 64 The trial judge was not in error in rejecting the defence of volenti.

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No duty of care 65 The defendant also sought to escape liability on the basis that, despite the relationship between passenger and driver, there was no duty of care in the circumstances of the case. Again, that approach would appear to be inconsistent with the approach adopted in Cook v Cook, discussed below. The basis for the argument was said to be the decision of this Court in Cusack v Stayt [2000] NSWCA 242, (2000) 31 MVR 517. However, the facts of that case bear no relationship to the present. They were described by Heydon JA in the following terms (at [19] and [20]): "At the time when the plaintiff was struck by the defendant's car the plaintiff had been guilty of assaulting the defendant, battering her and inflicting malicious damage to property in which she was sitting. There was no reason to suppose that he would not inflict further violence on her. The defendant was intoxicated and had used marijuana, as the plaintiff well knew … . The plaintiff thus knew before the defendant reached her vehicle that she was not fit to drive it, and that if she did there was a risk to her safety and the safety of others … ." 66 In those circumstances, his Honour described the relevant principles in the following terms at [25]: "None of the general principles commonly used in identifying the existence of a duty of care in relatively normal circumstances apply here. There was no special relationship between the parties or between the defendant and anyone else giving rise to any assumption of responsibility by the defendant for the plaintiff's safety. Their quarrelling had gone well beyond any stage when there was any consensual understanding between them about anything. There was no peculiar vulnerability in the plaintiff, rather it was the defendant who was vulnerable to the plaintiff's campaign of threats and violence. There was no actual reliance, and there could have been no reasonable reliance, by the plaintiff on the defendant to avoid injuring him. Indeed, he invited her to do so. While a sober driver in the defendant's position who had not been upset by the plaintiff might be said to be in a position of control, the defendant in her intoxicated and terrified condition was to the plaintiff's knowledge not in a position of control."

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However, it is not necessary to consider whether a principle so broadly stated is to be found in Cook v Cook : the position, for example, of other passengers in the car is not in issue in the present case, but only the position of the plaintiff who, it was conceded, was in the position of an instructor (albeit not a professional instructor) in relation to the defendant driver. 70 Trindade, Cane and Lunney, in The Law of Torts in Australia (4th ed, OUP, 2007) at p 444, also note an objection to "the whole approach in Cook v Cook involving variable standards of care based on a person's knowledge of the defendant's lack of skill and experience". The authors argue that a fairer approach would be to rely upon contributory negligence to reduce the plaintiff's damages, in an appropriate case, or to rely upon the doctrine based on voluntary assumption of risk. The authors' preference for the latter approach is that "the variable standard of care approach is more likely to work against plaintiffs than other applicable doctrines": p 445. On the other hand, Professor Fleming, in a statement not contradicted by the defendant in the present case noted that there was, when he wrote, "no modern reported case" in which a plaintiff had been completely barred (whether on a theory of reduced standard of care or voluntary assumption of risk), instead of merely having his damages reduced for contributory negligence: p 341-342. 71 It is important to note why the plaintiff was not entirely unsuccessful in Cook v Cook. In that case, the defendant driver had misjudged the corner, when instructed to make a left-hand turn and had found herself heading for a parked car. Her evidence, as set out by the High Court at p 389, described what happened next in the following terms: "I thought I would hit it [ie the parked car] if I didn't put speed on and go up between the car and the fence, so I concentrated on getting between the fence and the car that was parked, so I put my foot on the accelerator because I was going fairly slow, and I didn't see the stobie pole until we hit it. In fact I don't remember a stobie pole until we hit it." 72 In analysing this evidence, the joint judgment drew a distinction in the following terms (p 388): "Actions which are fairly to be seen as the result of that inexperience and lack of qualification rather than as having been caused by superimposed or independent carelessness did not, of themselves, constitute a breach of the duty of care which the appellant owed to the respondent."

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Application of principles: negligent conduct 74 The circumstances of the accident were largely common ground between the parties, at least on the appeal, and can be summarised briefly. Larapinta Drive, at the place where the accident occurred, was a straight and level stretch of gravel road. It was of ample width to allow two vehicles to pass without either leaving the compacted roadway. The surface was subject to corrugation, but the corrugations near the place of the accident, as shown in photographs tendered in evidence, appear not to have been of significant depth. The road dipped in parts where there were culverts, one of which was approximately 300 metres before the scene of the accident. There was a piece of a shredded tyre in the middle of the road at the scene of the accident. It was said by the plaintiff to be visible immediately the vehicle came out of the culvert, but the defendant said that he did not see it until about 50 metres before the vehicle reached it. What happened at that point is a matter of some importance, which will need to be addressed further. However, in broad terms, the defendant, who was driving (safely) in the middle of the road, at about 80 kph moved to the left to go past the tyre debris, rather than over it, but moved too far to the left so that the left-hand wheels of the vehicle were on the shoulder of the carriageway. The shoulder consisted of loose sand, gravel and dust and was undoubtedly softer than the roadway. However, it should not have created a difficulty for the driver, as long as he had steered the vehicle gently back onto the carriageway. Instead, the defendant accelerated, probably because he perceived (wrongly) a lack of traction and turned too far to the right. This manoeuvre took him across the road onto the right hand side, where he again over-steered and accelerated, with the result that the vehicle rolled onto its roof. 75 As the vehicle was travelling east, the right hand side of the road for the driver was the southern side. His Honour described the conduct which constituted a breach of duty in the following terms (at [48]): "It seems to me that in accelerating as he did in conjunction with steering sharply back towards the centre of the road from the southern edge of it, the first defendant behaved with carelessness over and above what could be attributed merely to inexperience. I accept the first defendant's evidence that he had been instructed by his grandmother in a lesson given to him before this accident that he should not attempt to accelerate out of a problem (T 284). The first defendant also agreed in cross examination (T 284) that common sense would have suggested that the thing to do was to take his foot off the accelerator. It seems to me that just as the deliberate acceleration in Cook v Cook introduced an element of carelessness over and above what could be attributed merely to inexperience, so, too, does the first defendant's deliberate acceleration in this case." 76 Counsel for the defendant challenged this finding on the basis that his action of acceleration was not in any relevant sense "deliberate" and, like the overcorrection on the steering, was entirely a product of his inexperience. Counsel drew attention to the following passage in the defendant's evidence, in relation to what happened after he steered to the right to get out of the soft shoulder on the left hand side of the road (Tcpt, p 271): "Q. What path did the vehicle then follow? A. The vehicle reacted obviously to my judgments in sort of a more radical or quicker way than I expected, being swerving to the right. I think at that stage because I've panicked, I've accelerated the vehicle. It swerved off to the right like I said. Pretty much as soon as it swerved off to the right, I noticed there was a ditch in front of me being the right-hand side of the road. Once again as soon as I saw the ditch, I've again corrected the vehicle to the left, kept accelerating at that time. Q. How hard did you steer back to the left when you saw the ditch on the right-hand side of the road approaching? A. Quite sharply because at that stage I was panicking because the vehicle actually swerved - was about to swerve off the road, so I've panicked, accelerated the vehicle and turned to the car to correct it." 77 This passage was set out by the trial judge at [13]. At [37] his Honour continued: "Why did this accident happen? I referred earlier to the first defendant's account as to what happened. Essentially, I accept the first defendant's account, although he was probably mistaken in his perception that the vehicle dug into the sand after he moved to the left to avoid the tyre debris. The perception as to what happened to the near side tyres is not borne out by consideration of the photographs in Exhibit 8. What seems to have been critical is what happened after the first defendant had gone to the edge on the right hand side of the roadway, and the sharp turn to the left from there and the continuing acceleration proved critical." 78 His Honour then turned to the question of causation and referred to a lengthy passage in the evidence of a "consultant transport engineer", Colin J Wingrove, called by the plaintiff. Mr Wingrove accepted a number of propositions relating to the additional skills required of a driver on gravel roads in the following terms (Tcpt 254-255): "Q. And of course, these skills in coping with roads that are corrugated, or have soft edges, or have loose surfaces, these are not skills one acquires overnight are they? A. No. Q. They're not skills that one acquires without instruction and training are they? A. Well, you'll acquire them if you learnt from experience I suppose. … They are driving skills that come about from experience, come about from instruction and come about by basically surviving on the road. Q. I think it's your opinion that it wasn't the condition of the road surface that caused this collision to occur, but the various errors made by Mr McNeilly. A. The one error, principally one error made by him. HIS HONOUR: Q. Which one are you referring to? A. The acceleration. I don't believe that the loose material at the edge of the road, and I don't think he made all that sudden steer to the left, certainly the physical evidence doesn't indicate that that took place, but the acceleration would have been the thing that caused the vehicle to in effect over steer. … Q. And of course, an experienced driver would know not to accelerate when you find yourself in difficulty like that but to do exactly the opposite, to let speed off. A. It's the first thing you do, you get into loose material and the vehicle starts to drift you take your foot off the accelerator. Q. That's something from your experience you know to do, the opposite, to speed up, is inviting disaster? A. You do that in any vehicle. If you accelerate in a turn you are going to do one of two things: you are going to roll the vehicle or roll the vehicle and/or over steer the vehicle. Q. And you've either got to be told that to know it or learn it by unfortunate experience, is that right? A. Well, that's part of the learning process." 79 There is force in the contention of counsel for the defendant, on this appeal, that his Honour's reference to "deliberate acceleration" in Cook v Cook as equivalent to the "deliberate acceleration" of the defendant in the present case, ignores a number of pertinent points of difference. First, the circumstances of the two accidents were far apart. The accident in Cook v Cook occurred in a suburban street; the present accident occurred on a gravel road in the country. In Cook v Cook, the acceleration required to pass between a car and a fence, combined with the failure to see a stobie pole, may understandably be described as more than and separate from the carelessness of inexperience. By contrast, the defendant's reaction in the present case, namely to accelerate when he felt his tyres lose traction in soft sand, was more readily to be perceived as a response based on inexperience. Secondly, the description, which his Honour accepted, given by the defendant, namely that he "panicked", also suggests a close correspondence with the foreseeable reaction of an inexperienced driver. No such evidence appears to have been given by Ms Cook. Thirdly, it appears to have been the acceleration combined with over-correction of the steering, which caused the vehicle to roll in the present case. Over-steering would appear to be a typical reaction of inexperience, which again puts the matter in a different category to the failure to see a stobie pole in front of the vehicle, as in Cook v Cook. In my view, these factors are inconsistent with a conclusion that the deliberate acceleration which immediately led to the vehicle rolling, was caused by some superimposed or independent negligent conduct, over and above that which resulted from the inexperience of the driver. Rather, the defendant's evidence as to his panic, after the vehicle swerved across the road to the right, is the kind of response which was reasonably to be expected from a driver with that level of experience, as known to the plaintiff. It would not constitute a breach of the relevant standard of care owed by the defendant specifically to the plaintiff. 80 The rejection of his Honour's conclusion in that respect is not, however, an end of the matter. It is necessary to consider whether there may not have been carelessness beyond that associated with inexperience, in other aspects of the defendant's driving. In this respect, it is necessary to return to the first steps which contributed to the accident. 81 When the vehicle was approaching the tyre debris in the middle of the road, it was travelling at about 80 kph, a speed which his Honour accepted was appropriate in the circumstances. There was also no suggestion that driving in the middle of the road was unsafe, given the straight and level condition of the road in that area. It was accepted that there would have been no difficulty had the defendant driven over the piece of tyre debris: given the clearance of the Land Cruiser, it was unlikely that it would have made contact with the debris at all. Nevertheless, there was no basis to infer negligence on the part of the defendant in taking what may have been seen as a cautious approach and steering to avoid the debris. However, the same cannot be said of his failure to keep the vehicle on the carriageway. Once the decision had been made to avoid the tyre debris by passing beside, rather than over it, there was nevertheless ample room to do so whilst keeping all four wheels on the carriageway. The fact that the near side wheels left the carriageway demonstrates a lack of reasonable care. That may have happened either because he did not steer to the left until he was some 30 metres from the tyre debris (that being the estimate of distance he gave in his own evidence) or simply because he steered too far to the left. Although there was some suggestion that it was a common fault of an inexperienced driver to watch the road too close to the vehicle (Tcpt, p 249) and not to look ahead, the evidence did not establish that this factor contributed in any significant sense to the accident: Tcpt, p 255. 82 In relation to steering too far to the left, Mr Wingrove gave the following evidence at Tcpt, p 256: Q. Thirdly, if he hadn't moved to the left sufficient to take him on to the soft edge of the roadway but had moved only a little to the left he could have driven ahead and the accident probably wouldn't have happened? … A. Even if he [went] to the left, to the near side of the road to dodge it, had he not made a sudden steer I don't believe the soft edges of the road would have caused him to lose control. I went through that exercise and I didn't find any difficulty in it." 83 What went wrong thereafter was arguably a result of inexperience of a kind which did not constitute a breach of duty to the plaintiff. It could also be said that his initial swing to the left, allowing the near-side wheels to leave the carriageway, was the act of an inexperienced driver and in a sense that is no doubt true. However, some weight must be given to the evidence that on three previous occasions he had demonstrated that he could exercise basic driving skills on unsealed roads without much by way of instruction. The initial manoeuvre fell, in my view, within the field of basic driving skills; but it was executed carelessly. It therefore constituted careless driving for which the defendant should properly have been held liable. 84 Although this approach reaches the same conclusion as that of the trial judge, it does so on a somewhat different basis. Counsel for the defendant accepted, during the hearing of the appeal, that he could not complain of this Court making a finding to that effect if it were so persuaded. Counsel for the plaintiff appeared to concede that it was an alternative approach, but did not embrace it. That may have been because he saw complications in relation to levels of contributory negligence, or for some other reason. It is, in my view, the preferable finding and should be adopted.

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Contributory negligence 85 The issue of contributory negligence as raised on the appeal involved matters of pleading and with respect to the appropriate factual finding. The primary judge gave careful considerations to both the submissions of the parties and the relevant evidence, before concluding that it was just and equitable to treat the plaintiff as being 30% responsible for the harm suffered: at [91]. 86 At [56] his Honour identified three bases upon which the defendant contended for a "high degree" of contributory negligence, namely: "(i) in permitting the first defendant to drive at all, having regard to his limited skills and experience; (ii) in permitting the first defendant to drive on Larapinta Drive; (iii) in failing to provide any instruction, either in pro-active or reactive driving skills." 87 In relation to the defendant's prior experience, his Honour accepted that he had had "four or five lessons on a Land Rover in the sand dunes at Kurnell" in Sydney, each being of "thirty to forty-five minutes duration" and at a maximum speed of 50 kph: at [59]. He had also four or five lessons driving a Volvo at the Woronora Cemetery south of Sydney: at [60]. 88 This particular trip took a route north-west from Sydney to Bourke and thence to the Queensland/South Australian border at Cameron Corner. From there the journey continued north to Birdsville and thence in a westerly direction along the French Line, across the southern Simpson Desert. From Witjira National Park, on the western side of the Simpson, the route went north-west through Finke, and thence through Kulgera on the Stuart Highway and west, off the highway, from Erldunda to Yulara. From Yulara the party backtracked to the Luritja Road and followed that north to Kings Canyon. The route proceeded north again to the Mereenie Loop Road and thence east along Larapinta Drive towards Alice Springs. The accident occurred shortly before the party reached Hermannsburg. 89 The evidence, accepted by the trial judge, was that the defendant was not permitted to drive until after the party left Bourke and then drove on four occasions before reaching Larapinta Drive. On each occasion he drove for some 30 or 40 minutes once shortly after Bourke, on the second and third occasions in the Simpson Desert, and again in the vicinity of the Finke River. 90 The trial judge rejected the claim that "the plaintiff failed to exercise reasonable care for this own safety by permitting the first defendant to drive at all": at [73]. He also rejected the suggestion that the plaintiff was negligent in permitting the defendant to drive on Larapinta Drive: at [83]. In respect of the latter finding, which addressed the second particular of contributory negligence, his Honour was required to address the evidence of Mr John Ristell, an ex-police officer and professional driving instructor, who asserted in his report that the roadway "was totally unsuitable for use by an inexperienced driver", based on his experience in driving the relevant section on 29 July 2005. He noted that "road signage warned that the condition of the road was extremely poor". 91 The trial judge in effect rejected the evidence of Mr Ristell and preferred that of other witnesses, including Constable Baum, who was posted at Hermannsburg at the time of the accident and who was familiar with the relevant section of Larapinta Drive, which he said he drove every day during the period of his posting to Hermannsburg. 92 The bases on which the conclusions of the trial judge were challenged were, first, a statement made by the plaintiff to the police, after the accident and, secondly, the signage along the roadway prior to the gravel section. In relation to the evidence of the plaintiff, the trial judge recorded the following at [32]: "The plaintiff was interviewed by police at Royal Adelaide Hospital on 23 April 2002 and at that time he described the road as 'very rough' and that there were 'corrugations all the way along it'. He invited police attention to the corrugations when investigating the accident. However, the plaintiff said that he did not himself observe corrugations of significance that would have caused the accident (T 66)." 93 The last paragraph referred to his evidence at the trial. The complaint made was that the plaintiff himself appeared to have changed his position in relation to the condition of the road, a matter which, it was submitted, called for explanation. However, the complaint to the police did not stand alone, nor was it necessarily a view that the road was "patently unsuitable for an inexperienced driver", as submitted for the defendant. The trial judge was entitled to make his assessment based on the evidence of Constable Baum, who attended at the accident scene, together with an inspection of the photographs taken. Neither of these elements of evidence, nor the evidence of the witnesses who were in the vehicle, gave support for the view that Larapinta Drive was in such bad condition that it was unsuitable for an inexperienced driver. The best evidence in support of the defendant in that respect was that of Constable Baum, who said that he had attended, in a period of approximately 10 months, six single vehicle accidents on that section of the Mereenie Loop Road. However, without knowing the circumstances of those accidents, it would have been difficult to infer from that evidence that the road was wholly unsuitable for an inexperienced driver under proper instruction. 94 The second basis of challenge was based on the road signs. Two particular signs were relied upon, one of which read: BEWARE LOSE SURFACE DUST CORRUGATIONS

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These instructions should have been given on approaching the gravel stretch and as occasion arose, including when the plaintiff saw the tyre debris on the roadway. 98 The defendant filed a cross-appeal challenging the finding of contributory negligence on the basis that "there was no causal connection between the acts and omissions of the Plaintiff … and the occurrence of the accident". Separately, and somewhat ironically given that the cross-appeal did not contain a ground raising a pleading point, the written submissions in support of the cross-appeal sought to raise such a point. On the appeal, the defendant did not complain about the lack of a specific ground in the notice of cross-appeal, but did seek leave to amend his defence, in the event that this Court thought that the lack of instruction was not adequately raised by the further amended defence, which was before the trial judge. 99 It is clear that the further amended defence did not raise a particular based on failure to give instruction, although, in relation to the standard of care, it did assert that the plaintiff was acting "in the capacity of driving instructor". However, there was significant cross-examination of the plaintiff with respect to his role as instructor and as to the nature of the instructions which were, or might have been, given: Tcpt, pp 106-109. No objection was taken at that stage. An issue was raised as to the scope of cross-examination of Mr Wingrove on day 7 of the trial. Although no specific objection had been taken, his Honour intervened (at Tcpt, p 333): "HIS HONOUR: Mr Rewell, is this a new case you're putting as a failure of the plaintiff to give instructions to this driver? REWELL: No. I don't want to make submissions now, but in our submission one of the first things we will say is that the plaintiff was faced with a dilemma between submitting himself to a standard of care such as that described in Cook v Cook because he was instructing the defendant or not. It's not a new case, no, it's a pleaded case and one always relied on. HIS HONOUR: You say that the plaintiff has been cross-examined relevantly and you'll take me to it in due course." 100 Mr Rewell SC, counsel for the defendant, came back to the matter in discussion with his Honour (at Tcpt, p 335) noting: "It appears that the plaintiff has elected to deal with the case on the basis that he was not an instructor and therefore Cook v Cook does not apply to him."

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A debate proceeded, in effect establishing that the plaintiff did not deny that he was an instructor, but merely denied giving any specific instruction. The argument concluded with the following statement by Mr Rewell, to which no objection was taken at the time (Tcpt, p 336): "If it be the case that the plaintiff's allegations are … that Mr McNeilly didn't require instruction then it's our allegation that it was an act of negligence to allow him to drive without instruction in the first place. I think we've made that plain throughout." 101 On 30 March 2006 counsel for the plaintiff filed written submissions which included the following statement under the heading "Contributory negligence" (at paragraph 122): "It is further submitted that any negligent acts or omissions of the Plaintiff had no real causal potency in relation to the accident that occurred. On the basis of cross examination to date it will no doubt be argued by the Defendant that a greater level of instructions should have been given to Mr McNeilly. However, failure to instruct or inadequacy of the instruction has not been pleaded as an allegation of contributory negligence. One issue raised in relation to failure to instruct was in relation to obstacles on the roadway. The Defendant personally makes no such complaint. The Plaintiff was certainly entitled to the view that no such instruction was necessary … ." 102 The written submissions of the plaintiff correctly anticipated an assertion of contributory negligence based on failure to provide any or any adequate instruction. This was expressly picked up in the defendant's written submissions at paragraphs 91 and 142-143. Oral addresses proceeded on 31 March 2006 where the question of contributory negligence received brief attention from counsel for the defendant (Tcpt, pp 407-408) and little additional attention from counsel for the plaintiff, and certainly no objection to the claim based on failure to instruct. 103 In these circumstances, it was appropriate for his Honour to give consideration to contributory negligence based on a failure to instruct the defendant adequately or at all, and without requiring further amendment of the defence, a course not sought by the plaintiff. It follows that no amendment is required at this stage and the plaintiff's objection in this respect should be rejected. 104 Each party complains of the assessment of 30% contributory negligence, the defendant saying that the correct figure was "at least 70%" and the plaintiff asserting in support of his cross-appeal that no contributory negligence of a causal kind should have been found. 105 The defendant noted that 70% was the apportionment for contributory negligence in Cook v Cook, but as that was a finding on the facts, it can have no direct application in the present case. Differences in the factual circumstances of each case have already been adverted to. 106 The test of apportionment, based upon what is "just and equitable", undoubtedly requires an evaluative judgment of an imprecise kind, permitting the trial judge a reasonably broad range within which any particular finding will not be open to challenge: see Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492. That case was itself an appeal from the verdict of a jury; nevertheless, the judgment of the High Court noted that a question of apportionment "if made by a judge, is not lightly reviewed": at 493-494. Nevertheless, a judge, unlike a jury, gives reasons for his or her decision which can, and should on an appeal, be assessed to determine whether error is shown to have occurred. In terms, his Honour addressed the correct principle, concluding that "it is just and equitable, having regard to the plaintiff's share of the responsibility for the harm suffered, that the damages to which he would otherwise have been entitled ought to be reduced by thirty percent": at [91]. 107 However, it is necessary to reconsider his Honour's finding on contributory negligence, because of the finding set out above that the negligence for which the defendant should properly be held liable is that which involved veering off the road to the left, when seeking to avoid the tyre debris, rather than the acceleration and over-steering, which occurred when the vehicle had been swung across to the right hand side of the road and gone onto the soft shoulder on the opposite side to that onto which the defendant originally veered. The significance of the variation in approach is that the contribution of the failure to give instruction, when considered at the later stage of the brief series of events, may well have been assessed at a lower level than if the negligence was the initial veering to the left and the failure adequately to correct the course of the vehicle. Lack of instruction in relation to that initial conduct may be seen to have a more immediate and significant operative effect. 108 As noted at [97] above, his Honour did refer, in specifying the instructions which should have been given, to a direction which he considered 'prudent', namely not to change direction to avoid the tyre debris on the road. It may be that his Honour did not intend to include this as a particular of contributory negligence, and for reasons already given, in my view avoiding the tyre debris was not of itself negligent conduct. However, what may be part of the first missing instruction (or possibly what his Honour intended to be the second missing instruction) relating to the conditions likely to be encountered and what to do if the vehicle should go onto the shoulder of the road, is a matter of some importance. If applied in relation to the final activity on the right hand side of the road, its importance may seem less than if it had been applied in relation to the errors on the left hand side of the road. As the tyre tracks indicated, and as his Honour concluded, the defendant veered off to the left hand side of the road, but his wheels did not in fact lose traction although he perceived that he had lost traction, because of the softer ground. A clear instruction not to accelerate in such circumstances and to steer gently back on to the carriageway would have avoided the disaster which ensued. It was precisely the kind of instruction which an inexperienced driver should have received and which an experienced driver, such as the plaintiff, should have known was appropriate and necessary. It may be, as the plaintiff asserted in his evidence, that the defendant had shown on prior occasions that he was reasonably competent in handling the Land Cruiser on rough surfaces and sand, but the level of experience of which the plaintiff was directly aware was extremely limited and he made no inquiry as to what additional experience the defendant may have had. 109 Counsel for the plaintiff argued that the complaint about lack of instruction was a clear case of reasoning from hindsight. Absent knowledge of what in fact happened, there would have been, he contended, a significant number of instructions which should have been considered by the plaintiff, most of which would have been entirely irrelevant and which would have probably diminished the benefit of the particular instruction which was said to be necessary. However, as the road signs suggested, there are indeed "careful driving techniques" which must be applied on gravel roads. There was no suggestion in the evidence that they are numerous, or that they relevantly include rarely encountered conditions. They do, however, include methods of dealing with corrugations, loose surfaces and soft shoulders. They may also include matters which did not arise in the present case, such as handling curves and steep or inappropriate camber. They clearly include dealing with obstacles in the roadway and with other traffic. But in almost every case, one critical concern is moving, whether deliberately or unexpectedly, on to a soft shoulder. And as Mr Wingrove indicated, experience may be as important as instruction. Thus, it would have been a simple matter to direct the driver to drive at low speed on to the soft shoulder in order to experience the effect on the steering and to practice the appropriate response. Even a driver experienced on bitumen would be well advised to take such a course and some no doubt test the shoulders of roads with which they are not familiar, as appearances are known to be deceptive. 110 Failure to take such elementary steps did, in my view, involve a significant degree of failure to take care for the plaintiff's own safety and, indirectly, for the safety of others in the vehicle. The plaintiff gave evidence that he did not consider there was such a risk, at Tcpt, p 117: Q. You see, by putting a driver in charge whose standard of driving was much less than your own, you knew that you were creating a risk of accident or injury that wouldn't exist if you were driving yourself. A. No. I didn't think that that was a sufficient differential in risk that would warrant that conclusion. Q. You are suggesting that, are you, that you didn't think that there was any more risk in having Jesse drive than in driving yourself. Is that what you are suggesting? A. Sir, if I thought that he was any risk in that sense, with my children in the car, I would not have permitted him to drive at all. The risk wasn't there in the sense that you are suggesting. There was nothing additional about the way he was driving that caused any additional risk. 111 As senior counsel for the defendant had noted in the course of the argument referred to above at trial, there appeared to be some ambivalence in the position adopted by the plaintiff and by counsel on his behalf. If he were in the role of instructor, and the defendant were his pupil, the lower standard of care, affirmed in Cook v Cook, would be applied. Although counsel accepted that he was in the role of instructor, the plaintiff avoided the adoption of that language in the course of his evidence. Consistently, he denied giving instruction. However, once it was accepted that he was in the role of an instructor, his failure to give instruction readily gave rise to the inference of contributory negligence. Further, given Mr Wingrove's evidence that he had tested the shoulder by driving his near side wheels on to it, in the same manner as the defendant had, and found no difficulty in bringing the vehicle safely back on to the carriageway, it was clear that an absence of instruction in that technique was directly causative of the accident. Looked at the from the point of view of an innocent third party, such as another passenger, it is difficult to justify the conclusion that, as between instructor and pupil, the pupil must bear a greater proportion of responsibility than the instructor. There is no reason, at least in the present case, why the same assessment should not apply as between instructor and pupil. In my view the plaintiff should have been found to bear two-thirds of the responsibility for the accident. Accordingly, he was entitled to one-third of the damages as properly assessed. 112 It is convenient to turn next to the question of assessment and, as a preliminary matter, to identify the relevant legal principles to be applied in that exercise.

[79]

Choice of Law 113 The assessment of damages in this matter depended in part on the legal regime to be applied. His Honour held that it was "now settled that the law governing the assessment is the law of the Northern Territory", being the law of the place in which the accident occurred (known as the lex loci delicti): at [93]. That conclusion was said to follow from the reasons of the High Court in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. That conclusion was not directly challenged in this Court, but, as before the trial judge, there was a dispute as to whether the Territory Compensation Act governed the quantification of damages, or whether that quantification should be undertaken according to general law principles. (Although his Honour did not accept the principle that damages should be assessed according to the common law, he did indicate in his judgment the variations in the amount of the award which would be appropriate, if he were wrong in relation to the basis of calculation.) 114 Where a New South Wales Court is required to resolve a claim for damages arising out of an accident in the Northern Territory, it must first decide whether to apply relevant legal principles found in New South Wales law, or those found in the Northern Territory law. That choice of law question is to be answered by reference to the law of New South Wales. 115 The present case does not involve federal jurisdiction. No constitutional issue has been raised; no question of diversity jurisdiction arises nor is there any other basis which would give rise to an exercise of federal jurisdiction. John Pfeiffer involved a question in federal jurisdiction, but did not limit its consideration to such a case: see 203 CLR 503 at [19]. It held, relevantly for present purposes, that the law relating to the assessment of damages in a civil tort action was a matter of substance which, in accordance with general law choice of law rules in Australia, was to be decided according to the law of the place where the accident occurred. However, and subject to the possible constraints imposed by the Federal Constitution, general law choice of law rules may be modified by statute: see at [70]. 116 John Pfeiffer was concerned with the operation of particular provisions in Division 3 of Part 5 of the Workers Compensation Act 1987 (NSW). The general obligation imposed by s 151F of that Act was noted at [11] in the following terms: "Section 151F provides that '[a] court may not award damages to a person contrary to this Division'. Prima facie, as a matter of New South Wales statute law, the prohibition of s 151F is directed to the courts of New South Wales, at least where they are exercising State jurisdiction."

[80]

This conclusion was supported by reference to s 12 of the Interpretation Act 1987 (NSW). The conclusion was not, however, directly relevant in John Pfeiffer because the trial in that case had been conducted in the Supreme Court of the Australian Capital Territory. In the present case, the statement has direct relevance because the proceedings were commenced in a New South Wales court. 117 In Guidera v Government Insurance Office (NSW) (1990) 11 MVR 423; [1990] Aust Torts Rep ¶81-040, this Court (Gleeson CJ, Clarke and Handley JJA) addressed the operation of provisions of the Motor Vehicles (Third Party Insurance) Act 1942 (NSW) ("the 1942 Act") relating to the discount rate and the interest payable on general damages, with respect to a collision which, as in the present case, occurred whilst the vehicle registered in New South Wales was in the Northern Territory. Section 14 of the 1942 Act required that, in the case of an "insured motor vehicle" proceedings were to be brought against the Government Insurance Office where the accident occurred whilst the vehicle was being used "in any place, whether within New South Wales or otherwise". The term "insured motor vehicle" was defined to mean a vehicle in relation to which a third-party policy was in force which complied with the requirements of the 1942 Act. The plaintiff, having commenced proceedings in accordance with s 14, then argued that the relevant sections of the 1942 Act did not apply, but rather that damages were to be assessed by reference to Northern Territory law: at 428. The Court held (at 429): "As was pointed out in Breavington [(1988) 169 CLR 41] … and as had been pointed out in other authorities (see for example Koop v Bebb (1951) 84 CLR 629 at 644 and Boys v Chaplin [1971] AC at 376-7, 389 and 395). The ultimate issue in a case such as the present is one as to the law of New South Wales. To paraphrase the words of Lord Pearson in the passage from Boys v Chaplin last cited, a choice of law is involved and, as it has to be made in the New South Wales court in which the action is brought, it must be governed by the principles of New South Wales law for making such a choice. … Whatever precisely may be the common law principle which would otherwise have directed the Supreme Court of New South Wales as to the manner of resolution of the dispute brought before it on this occasion … those common law principles must yield to any applicable statute enacted by the New South Wales Parliament. No issue of legislative power was raised in argument in the present case, and the question must therefore come down to one of statutory interpretation. If the Motor Vehicles (Third Party Insurance) Act 1942, upon its true construction, applies to the present case and, in particular, if ss 35B and 35D apply to proceedings such as these, then it is the statute that determines the manner in which the damages claimed by the appellant are to be calculated by this court."

[86]

Operation of Territory Compensation Act 124 The next question concerned the relevant Territory law. The defendant argued that the Territory Compensation Act applied, a contention which the trial judge accepted. On the cross-appeal the plaintiff said the statute did not operate in its terms and resort must be had to the common law. 125 The key provision in the Territory Compensation Act, as in force at the date of the accident, namely 3 April 2002, provided: " 5. Abolition of certain common law rights (1) An action for damages shall not lie in the Territory - (a) in respect of the death of or injury to a person who at the time of the accident was a resident of the Territory; or (b) in respect of an injury to a person who, at the time of the accident, was not a resident of the Territory - (i) for non-economic loss in excess of the amount from time to time prescribed for the purposes of section 17; (ii) for future loss except at discounted present values; or (iii) for future economic loss or future loss of earning capacity calculated on a weekly basis for any sum in excess of the amount from time to time prescribed for the purposes of section 13, in or as the result of an accident that occurred in the Territory." 126 Although his Honour adopted the form of s 5, as in force at the date of the accident, there had been no relevant change to that provision by the date of trial, or indeed by the date of the hearing of this appeal. However, in applying the relevant operative provisions, his Honour appears to have adopted figures, by agreement between the parties, prescribed as at the date of trial. No doubt the reason for taking s 5 as at the date of the accident was that it seeks, in its terms, to prohibit an action for damages in the Territory in certain circumstances. That language is a little awkward in relation to sub-s (1)(b) which, in effect, limits the amounts recoverable in an action, by reference to residence at the date of the accident. In any event, nothing turns on the relevant date for present purposes. 127 The plaintiff contended that s 5 had no operation in the present proceedings because they were brought in New South Wales, whereas the opening words of sub-s (1) contemplate an action "in the Territory", which should be understood as an action brought in a Territory court. However, the trial judge accepted, in effect, that because the law of the Northern Territory was to be applied by the Supreme Court of New South Wales, a geographical limitation of that kind did not operate. 128 Other provisions of the Territory Compensation Act were sought to be invoked by the plaintiff as demonstrating that s 5 cannot have had the operation in a court outside the Territory which the defendant sought to give it. For example, it was noted that both ss 13 and 17, picked up by sub-pars (b)(iii) and (i) respectively, would not, in their terms, operate in relation to a person who was not a resident of the Territory. However, those considerations cannot be decisive, because the two subparagraphs of s 5(1) do not purport to invoke the operation of ss 13 and 17, but merely the amounts prescribed for the purposes of those sections. 129 Reference was also made to s 41 of the Territory Compensation Act, which saves the common law rights, as they existed before the commencement of the Territory Compensation Act, in relation to a person who was the holder of a current third-party policy: s 41(2). This provision, it was argued, demonstrated that the Territory Compensation Act did not intend to prevent a person pursuing common law rights for damages against the holder of a current third-party policy. As the defendant in the present proceedings had the benefit of such a policy, s 41 demonstrated an intention that the plaintiff not be deprived of his rights in such a case. 130 This argument, however, seeks to infer too broad an intention from the terms of the provision. The phrase "third-party policy" is defined to have the same meaning as in Part V of the Motor Vehicles Act (NT) as in force immediately before the commencement of the Territory Compensation Act: s 41(1). It has nothing to say about the present circumstances: it is, in effect, a transitional provision in relation to Northern Territory registered vehicles: see Perrett v Robinson (1988) 169 CLR 172 at 185 (Dawson J) and 191 (Toohey J), in passages set out by the trial judge at [122]-[125]. 131 There are two ways in which the plaintiff's construction argument may be understood. The first is by treating the geographical limitation as rendering s 5 beyond the scope of a law which can be picked up and applied in any other circumstances. In this sense, the point is analogous to that which arises when a provision of the Judiciary Act picks up and applies State law in federal jurisdiction. Because a State or Territory has no constitutional power to legislate for the law applicable in a Federal court, the relevant State or Territory law must be understood as one having application only in a State court exercising State jurisdiction. But if that limitation is to be treated as universally applicable, it will contradict the intended operation of the Commonwealth law which seeks to pick it up. This is not a novel issue. For example, in John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 88, Gibbs J stated: "It is also settled that s 79 does not give a new and more extensive meaning to State laws which it renders binding on a court exercising federal jurisdiction; it applies those laws with their meaning unchanged … . To that last proposition it is, however, necessary to add a qualification. Section 79 may render applicable in a court exercising federal jurisdiction a State statute which either by its express provisions or upon its proper construction is limited in its application to the courts of the State. ... If the laws of a State could not apply if, upon their true construction as State Acts, they related only to the courts of the State, it would seem impossible ever to find a State law relating to procedure, evidence or the competency of witnesses that could be rendered binding on courts exercising federal jurisdiction, because most, if not all, of such laws, upon their proper construction, would be intended to apply in courts exercising jurisdiction under State law." 132 In Kruger v The Commonwealth (1997) 190 CLR 1, Gaudron J stated at 140: "There may be statutory provisions couched in terms which make it impossible for them to be 'picked up' by s 79 of the Judiciary Act . Similarly, there may be provisions which impose functions which are beyond the reach of s 79. Even so, I see no reason why s 79 cannot 'pick up' limitation laws or other statutory provisions merely because they are expressed in terms applying specifically to State or Territory courts."

[87]

This passage was quoted with approval by Gleeson CJ, Gaudron and Gummow JJ in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at [72] and by Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ in Solomons v District Court (NSW) (2002) 211 CLR 119 at [24]. 133 The alternative way of understanding the plaintiff's submission is that s 5 incorporates a choice of law rule which is inconsistent with the general law. That approach seems to have underpinned a submission based on the proposition that, when first enacted, the Territory Legislative Assembly would have assumed that the relevant choice of law rule in relation to assessment of damages was the lex fori. Accepting the assumption, although it is not in terms borne out by the relevant second reading speech, the use of the term "in the Territory" is not properly understood as a choice of law rule at all, but an express indication that the Territory legislature was not presuming to legislate for proceedings in courts in other jurisdictions or "law areas", to use the phrase adopted in John Pfeiffer. 134 The plaintiff's submission would seem to be at odds with the fundamental principle that there is but one common law operating in Australia, albeit subject to statutory variation by a responsible legislature acting within power and that, as a consequence, a common general law choice of law principle will have the effect of maximising the likelihood that proceedings will be decided according to the same rules, regardless of the court in which they are commenced: see John Pfeiffer, 203 CLR 503 at [86] and [102]. For the Territory to enact a law in relation to accidents occurring in the Territory, but one which can only ever be applied in proceedings brought in a Territory court, despite the general choice of law rule, so that both Territory residents and non-residents suing in other law areas must recover damage in accordance with common law principles, is not a construction which should readily be adopted. 135 The plaintiff suggests that it would be unlikely, in practical terms, for a resident of the Territory to bring proceedings elsewhere. However, that is not so. Section 5(1)(a) refers to a resident of the Territory "at the time of the accident". Such a person, who was injured in an accident in the Territory involving a South Australian car, but who went to live in Adelaide and commenced proceedings there within the limitation period, would not be an uncommon example. 136 There is a further indication in s 5 that it was not intended to change any general law choice of law principle. Thus, the closing words of s 5(1) indicate that its provisions operate only with respect to accidents which occur in the Territory. That kind of geographical limitation has a distinct and different juridical effect to that which seeks to limit the place in which an action is brought. There is no reason to conclude that s 5 is a provision which cannot, in its terms, be applied by a NSW court in assessing damages resulting from an accident which took place in the Territory, as required by common law choice of law rules operating in NSW. 137 The cross-appeal in this respect should be dismissed: Studdert J was correct to assess damages in accordance with s 5(1)(b) of the Territory Compensation Act.

[88]

Damages: life expectancy 138 The trial judge had before him differing opinions, including that of Dr Buckley, a specialist physician in rehabilitation medicine, who examined the plaintiff and expressed the view that, despite his injuries, he had a life expectation of 85% of the years that would normally remain. In formulating that opinion, Dr Buckley referred to Australian data published by Professor John Yeo, formerly of the Royal North Shore Hospital Spinal Injuries Unit, and others in a paper, "Mortality Following Spinal Cord Injury" published in Spinal Cord (1998) 36, 329-336. Professor Yeo and a team of researchers expressed the view that, on average, a person with the plaintiff's level of disability would expect to achieve only 77% of normal life expectancy. Dr Buckley, however, considered that some further improvement may have resulted since Professor Yeo's paper was published and that it was necessary to take into account particular circumstances relevant to the plaintiff which might suggest that he would have a longer than average life expectancy. 139 Professor Yeo's paper was treated by Dr Buckley as authoritative. The paper concluded that "projections of life expectancy would yield, for example, results of 77% of the population life expectancy for those with complete tetraplegia": p 335 (col 1). That figure took account of an implied "net rate of improvement" of 1.6% per annum in the population of people with spinal cord injury, presumably over the length of the study (which concluded in 1993), as well as subsequent years. It was not suggested that Dr Buckley was incorrect in making allowance for the fact that further improvement might have been achieved since that time. Nor could it properly be suggested that Dr Buckley was incorrect in taking into account his assessment of personal circumstances. The paper did not suggest otherwise; its conclusion stated: "The results of this study provide a rational basis upon which life expectancy can be considered for each individual patient suffering from spinal cord injury in the present and near future." 140 In addition, the paper stated (p 335): "These statistics provide a framework within which life expectancy can be considered for each individual. However, care must be taken when applying projections for life expectancy for an individual from grouped data. In applying these estimates of life expectancy one must be careful not to discount expected improvements in survival of patients who have sustained spinal cord injury, compared to the general population." 141 The complaint made by the defendant on the appeal was not that Dr Buckley's evidence should have been rejected, but that his Honour did not accept Dr Buckley's concession that Professor Yeo himself would probably have adopted his "usual approach" and simply quoted the 77% figure, as identified in the study. However, Dr Buckley gave reasons why he did not accept that "average" figure in this case. The trial judge set out his evidence and accepted it. The further criticism raised by the defendant is that plaintiff himself agreed that he had seen Professor Yeo, and that medical reports had been provided in relation to the plaintiff, which the plaintiff had not tendered. His Honour should, it was argued, have applied the rule in Jones v Dunkel to infer that Professor Yeo's evidence would not assist the plaintiff. 142 One may indeed draw the suggested inference, but it does not greatly assist the defendant. When the reports were exchanged, which was of course prior to cross-examination, one might infer that Professor Yeo's report would have indicated a level of life expectancy below the 85% figure adopted by Dr Buckley. Following cross-examination of Dr Buckley, one might infer that Professor Yeo's report probably included the figure of 77%. In that sense, it did not "assist" the plaintiff. However, Dr Buckley was cross-examined on the basis that Professor Yeo would have adopted the lower figure and gave a coherent explanation as to why his own opinion was not to the same effect. 143 The trial judge was quite entitled to prefer the opinion of Dr Buckley, who had seen the plaintiff, to that of Dr Voss, called by the defendant, but who had not seen the plaintiff. He was also entitled to accept Dr Buckley's explanation of his departure from Professor Yeo's "usual" figure. No error has been demonstrated in approaching the question of damages based on a life expectancy of 85% of normal years.

[91]

That appears to be the same regime for which allowance was made for the future. In other words, there was no variation to be reflected in a reduced need for gratuitous domestic assistance. 148 So far as maintenance was concerned, his Honour noted at [201] that the plaintiff's father had done maintenance work around the home for one or two hours per week. Whether that included gardening or not is not clear from the judgment. 149 The parties did not assist the Court in relation to the question of gardening expenses. The plaintiff gave evidence of his father and mother assisting at home, but there did not appear to be any specific reference to gardening: Tcpt, pp 34-35. The plaintiff obtained reports from an occupational therapist, Glynis Flanagan. Ms Flanagan did refer to gardening costs (report, 26 June 2003, p 17), but expressed ignorance as to the existing gardening arrangements in her evidence: Tcpt, pp 150-151. However, on the basis of Ms Flanagan's second report (at par 11.2) the plaintiff claimed in written submissions "gardening and maintenance" for an average of three hours per week calculated at $38.5 per hour, and his Honour made separate allowance for this item. 150 I would not interfere with his Honour's findings in relation to past domestic assistance. Accepting that allowance should be made for the changes to which his Honour referred, it would appear that the eight hours per week allowed in the past should be reduced by three hours per week for the future, if consistency were to be the key and no changes in circumstances were identified which would justify a different approach. Those assumptions should be accepted. Thus, the claim for future gratuitous assistance should be based on five hours per week. On the basis of the plaintiff's schedule of damages, that would appear to require an allowance of $26,854. The plaintiff did not trouble this Court with a calculation in support of his cross-claim, and the parties should have leave to provide an agreed figure if the figure proposed is incorrect.

[93]

Barwick CJ expressed a similar conclusion at 566. 154 The defendant's case on appeal was, in effect, that the plaintiff had been adequately and reasonably compensated for his injury by having a carer available around the clock and by numerous modifications to the house which made it accessible to a person in a wheel chair. On the other hand, the case for the plaintiff was that the carer had a number of other functions to attend to and would not be with the plaintiff, or available to him in the home, at all times to change a television channel, adjust the volume or undertake similar tasks which, with electronic assistance, the plaintiff could do himself. Indeed, it was argued that the "carers are not servants and are likely to become highly frustrated if called away from attending to other tasks merely to change a television channel". The importance of a "stable long-term relationship" between the plaintiff and his carer was emphasised. 155 The defendant sought to rely on Sharman v Evans for a point of principle, rather than for a conclusion on the particular facts of this case. As appears from the judgment of Kneipp J in Wieben v Wain (1990) Aust Torts Rep ¶81-051 (QSC) it may be that some care should be taken in seeking to derive any broad principle from the statements in the judgments: at pp 68,188-68,189. Similarly, it is commonly accepted nowadays that significant benefits will flow to a person from modifications which would allow him or her to live at home, rather than in an institution: see, eg, Government Insurance Office (NSW) v Mackie (1990) Aust Torts Rep ¶81-053 (Clarke JA, with whom Mahoney and Handley JJA agreed: at p 68,211 (col 1)). Furthermore, the great advances in technological devices which can assist a severely injured person to improve his or her level of independence and the enjoyment of the amenities of life, may well be seen as a better form of compensation than a higher award of general damages flowing from a greater degree of pain and suffering. Finally, an assessment of what is reasonable in the circumstances of a particular case, may well involve some consideration of the significance of the expenditure, as a proportion of the likely overall award, as well as the difficult assessment of the relationship between the additional proposed cost and the anticipated benefit. 156 As with the next item to be considered, it is not irrelevant that the insurer, on behalf of the defendant, was willing to accept, before trial, the value of some form of electronic control device. Nor is it irrelevant that the actual cost of the proposed equipment was not challenged as unreasonable. 157 By referring to the insurer's involvement in the provision of such equipment in the past, it is not intended to suggest (nor did the plaintiff seek to suggest) that there was some form of admission involved. The possibility that such conduct can give rise to an admission, in circumstances where it takes place pursuant to a statutory obligation to provide assistance which is "reasonably necessary", as for example, pursuant to s 60AA of the Workers Compensation Act 1987 (NSW) need not be addressed in the present circumstances: c.f. Gordon v Ross [2006] NSWCA 157 at [127]-[136] and see State Rail Authority (NSW) v Brown [2006] NSWCA 220 at [85]. Furthermore, it was entirely open to the defendant's insurer in this case to accept that a cheaper form of equipment might be tried but, when it proved unsatisfactory and the more expensive form was required, yet contend that the test of reasonableness was no longer satisfied in relation to the greater expense. 158 More importantly in the present circumstances, particular leeway must be given to the judgment of the trial judge in assessing the reasonableness of a particular item which constituted less than 3% of the likely total award, and formed part of a regime which involved other items of equipment, professional care and gratuitous domestic assistance. A duplication of benefits might demonstrate error, but that was not established in the present case. In all the circumstances, in my view no proper basis for intervention has been demonstrated.

[94]

Case manager 159 His Honour also allowed an amount of $47,000 for a "case manager". The description does not reveal any readily identifiable purpose, but Ms Flanagan's explanation in her report gave a little more detail. She stated (somewhat obscurely) in her second report (par 11.8.4): "Whilst I believe that Mr Imbree is capable of managing his own affairs, considering the nature and complexity of the level of care and assistance that he requires including ensuring that his health management plan is carried out, that attendant carers provided by the service provider are suitable and competent in providing services to Mr Imbree, as well as the inevitable need to source new providers and health care services when current service providers are no longer available …, provide support to Mr Imbree and assist him with achieving his goals and the inevitable need to maintain and keep equipment functioning … ." 160 This description suggests a considerable level of overlap between items of expense. However, in her evidence she provided some further clarification (Tcpt, p 147): Q. And case management relates to control of carers, replacing carers, organising his various activities and coordinating his needs including transport, hydrotherapy, physiotherapy, all those sorts of things? A. Yes, that's right. … Q. … Is there a potential problem for someone who is a quadriplegic and has to negotiate arrangements with his carers for him to be totally dependent on those carers as his interface with the outside world? A. That could potentially place him in a vulnerable position. He is dependent on people and if he is not satisfied [with] those people to terminate their services would be very difficult. … Q. What are the other reasons? A. I acknowledge Paul is a bright man, I think emotionally it must be very difficult to organise - you may have a health management [plan] worked out for you. To do it must be very hard coming from an emotional point of view. Also it is quite difficult to find the right staff. When I saw Paul the second time he was actually looking for an occupational therapist … and we were having difficulty with the current case manager. So it is those phone calls to phone the different therapists and work out if they are the right person to assist him. That takes time and it can be very disheartening, so it is more to support him in being able to do all of the things he really should. 161 In cross-examination Ms Flanagan was asked (Tcpt, pp 148-149): Q: Once it is routine as it is in Mr Imbree's case, what on earth is a case manager going to do in a two-hour period every fortnight or five hours every month? A. You have to allow travel time and time to write up notes of what she has done, so it would not be five hours sitting with Paul." 162 While one can understand some awkwardness in requiring a plaintiff with tetraplegia, and in a position of total dependence on his carers, to have to decide whether to terminate their services and find alternative services, allowance for such an eventuality would not appear to require routine attention. Further, Ms Flanagan's evidence, somewhat ironically, seems to suggest that there had been a problem with the person assigned as "case manager" before the trial. There must be a limit to the level of bureaucratic complexity which is to be paid for by a defendant in such cases. 163 As the trial judge noted, Ms Flanagan's view was not shared by Dr Buckley and his Honour saw "no reason to prefer the opinion of Ms Flanagan to the opinion of Dr Buckley": at [179]. He further concluded that "the plaintiff impressed me as an alert person capable of participating in the management of his own affairs". He accepted that "situations may arise, for instance with carers where the plaintiff may become dissatisfied with them and wish to have them replaced": at [180]. His Honour thought it reasonable to provide a fund to address such problems as may occur from time to time and allowed $47,000 for such expenses. 164 The justification for the allowance, calculated at the rate of two and a half hours per month, remains somewhat obscure. However, the defendant has not established any clear error on the part of the trial judge and it is not appropriate, in my view, to interfere with that aspect of the award.

[95]

Improved housing 165 The house in which the plaintiff lived prior to the accident was acknowledged by both parties to be "unsuitable" thereafter. It was sold for $575,000, and a new property purchased at a cost of just over $1.5 million. The cost of the move was a fraction in excess of $1 million, to which an amount of almost $350,000 was spent on further modifications. The claim for suitable accommodation (putting to one side the additional $300,000 sought for the environmental control unit) was an amount of $1,353,865. (These figures were adjusted by agreement after judgment, to bring into account the expenses involved in selling the former home.) As a result, as his Honour noted, the plaintiff had "the benefit of a better class of property to enjoy, and he has a more valuable capital asset": at [221]. Subject to an allowance on that account, and after noting the paucity of evidence in respect of the relevant valuations and expenses, his Honour concluded at [226]: "With some hesitation, I conclude that it was reasonable of the plaintiff to purchase the present property and that it is reasonable to allow for the cost of internal modifications necessitated by the plaintiff's special needs. Further, I conclude that it is reasonable to allow the plaintiff the cost of the installation of the lift and the modifications to the pool necessary to enable him to utilise the pool." 166 The defendant submitted, and his Honour accepted, that there should nevertheless be a deduction of $500,000 for the fact that the plaintiff now enjoys a more valuable asset. That deduction was challenged by the plaintiff on the cross-appeal. It was stated to be an "arbitrary deduction" and "clearly contrary to the authorities". The plaintiff sought to rely upon a passage in the joint judgment of Kirby P and Meagher JA in Marsland v Andjelic (1993) 31 NSWLR 162 at 176F, where their Honours declined to make a reduction in the award for home improvements because of an increase in the capital value of the property which would thus be achieved. Their Honours stated: "A number of reasons support such a conclusion. First, such an increased capital value will only accrue upon the death of the appellant. Secondly, no doubt the alterations and adaptations will deteriorate over time and will require repair and maintenance at the expense of the appellant … ." 167 The issue was revisited by the Court, similarly constituted, in Nicholson v Nicholson (1994) 35 NSWLR 308. However, as explained by Kirby P at 327 (in a judgment with which Mahoney and Meagher JJA agreed) a distinction may need to be drawn between modifications which do give rise to a permanent capital gain and those which are likely to deteriorate over time. The President applied the reasoning of Glass JA in Frankom v Woods (NSWCA, 1 October 1980, unrep) to this effect, and reiterated the passage from Marsland, set out above. 168 A complaint that a plaintiff may obtain a capital benefit tends to distract attention from the legal effect of the Court's judgment. The defendant is liable to compensate the plaintiff for the loss suffered as a result of his tortious conduct. Despite the approach adopted 30 years ago in Sharman v Evans, the plaintiff's needs, resulting from his or her injuries may include appropriate modifications to his or her home. In some cases modification may be impracticable, or at least more expensive than the sale of the existing home and purchase of a new home, more suitable to the plaintiff's circumstances. Where modifications are undertaken, or a new home purchased, prior to trial, as with other past expenses, the actual expenditure may provide evidence of the relevant item of compensation. However, in general terms, it will always be open to a defendant, unless bound by some form of estoppel, to challenge the reasonableness of the actual expenditure, or, in an appropriate case, the causal relation between the expenditure and the injury. In some situations, expenditure which may seem unreasonable in an abstract sense may be justifiable because it is a reasonable attempt at mitigating loss. For example, in the present case, the plaintiff was required to stay in hospital until alternative accommodation was arranged, no doubt at significant expense. The defendant's insurer apparently took some part in arranging the new accommodation, although it was not suggested in this case that its involvement precluded it from challenging the reasonableness of the expense actually incurred. 169 Properly understood, the exercise undertaken by the trial judge in the present case did not involve discounting the cost of home modifications, because they would provide a capital gain to the plaintiff, but rather involved the calculation of the reasonable cost of alternative suitable accommodation. Neither the defendant nor the Court was bound to accept the price paid for the new home as the reasonable cost of alternative accommodation. The exercise undertaken by his Honour involved a correct application of principle. 170 There is a sense in which reference to "capital gain" is anomalous. What the Court awards is an amount of damages discounted, in respect of future expenditure, to achieve a present value. What the plaintiff in fact does with that amount is not subject to the control of the Court, except where the plaintiff is incapable of managing his or her affairs and the money is vested in a protective commissioner. If, after trial, the plaintiff invests the money astutely and makes a substantial profit, that is not taken into account, nor is the possibility that such a result may be achieved. By parity of reasoning, if the plaintiff has purchased alternative accommodation prior to trial, there is no need to take into account any increase in value which has already accrued. 171 Accordingly, the complaint made by the plaintiff on the cross-appeal must be that the inclusion of an amount of $519,078 for suitable accommodation demonstrated error. 172 His Honour allowed home improvements in the amount of $347,777, together with an additional amount of $519,078 as the cost of obtaining more suitable premises. Given the value of the plaintiff's former house, as evidenced by the sale at $575,000, it is apparent that his Honour allowed as the value of a suitable house, prior to modification, a little over $1 million. That conclusion obtains support from the report of a valuer, Grahame Brook, who stated in a report dated 12 January 2004: "To purchase a property with the potential to renovate it seems that the market is looking at over $1,000,000 and the better areas from about $1,500,000."

[97]

Conclusions 173 It follows that I would interfere with the judgment of Studdert J in two respects. In favour of the Appellant (defendant) I would vary the reduction in the plaintiff's award on account of contributory negligence. In favour of the Respondent (plaintiff) I would add an amount on account of future gratuitous domestic assistance. The so-called "short minutes to finalise judgment" provided that the damages, as assessed, prior to reduction for contributory negligence, totalled $11,115,290. After relevant adjustments and on the basis that the plaintiff bore two-thirds of the liability for the accident and the defendant one-third, the resulting award should be $3,714,048. 174 The further amended defence asserted that the defendant was entitled to credit for amounts paid by the defendant's insurer to or on behalf of the plaintiff, which amounts were agreed as $2,614,557. There is no dispute as to the defendant's entitlement to that reduction. The balance payable in favour of the plaintiff is therefore $1,099,491. He is entitled to a judgment in his favour in that amount. 175 The "short minutes to finalise judgment", although purporting to be in the form of "orders" were not in usual terms. Whether the orders were taken out is not clear. The notice of appeal states that judgment was entered in the sum of $7,780,703 which, if true, made no allowance for payments made by the defendant. 176 The short minutes filed after the delivery of judgment also provided that the defendant pay the plaintiff's costs of the proceedings "on the usual basis up to and including 22 March 2006 and on an indemnity basis thereafter". There was no appeal against that order. (Indeed, the notice of appeal did not seek any orders at all, an objection which the plaintiff may have been willing to overlook, as neither his notice of cross-appeal nor his amended notice of cross-appeal sought any orders either.) Because, presumably, there was an offer of compromise made on or about 22 March 2006, it may be appropriate to set aside any order made by the trial judge in relation to the costs of the trial, but the parties should be given an opportunity to consider that issue. 177 So far as the costs of the appeal are concerned, the notice of appeal identified nine separate headings and thirty grounds. The Appellant has been successful in relation to only one matter, namely the assessment of contributory negligence. However, it is a matter of some moment in relation to the ultimate judgment. The Respondent, on the other hand, was unsuccessful in relation to four of the five grounds of cross-appeal, although one ground, being the challenge to the correctness of the High Court judgment in Cook v Cook was not pressed and did not, in any event, affect the outcome of the proceedings. On the other hand, he has been successful in obtaining an amount for future gratuitous assistance and has otherwise retained the various items of damages allowed by the trial judge. 178 There are two other factors to be considered in relation to the costs of the appeal. First, the Respondent (plaintiff) was also unsuccessful in his objection to the finding of contributory negligence based on a lack of pleading with respect to failure to give instructions to the inexperienced defendant driver. As already noted, there was no express pleading of that ground in the cross-appeal. Secondly, although the Appellant's success in relation to contributory negligence has a major effect on the outcome, the time devoted to the topic on the appeal was relatively minor, as the issues it raised were largely debated in the context of the duty of care and the relevant standard to be applied. 179 Given that neither party sought an order for costs, it is tempting, in the circumstances outlined above, to order that each party bear his own costs of the appeal. However, the parties have not been heard on that topic and, if they are unable to agree on an appropriate outcome, and either wishes to seek an order for costs, such party should file written submissions setting out the order sought and the arguments in support thereof within 14 days. The other party (or parties) may have seven days to respond in writing. 180 Subject to any intractable issue in relation to costs, the Court assumes that the parties will be able to agree the orders necessary to dispose of the appeal in accordance with these reasons and directs that short minutes, in an appropriate form, be filed within 14 days. **********

Appeal Outcome: Special leave application granted by the High Court - 8 February 2008 (S385/2007); Special leave application referred to the Full Court - 8 February 2008 (S392/2007); Appeal allowed - 28 August 2008 - Imbree v McNeilly; McNeilly v Imbree

At a glance

Court

Decision date

Before

Source

Judgment (98 paragraphs)

Legislation Cited (8)

Cases Cited (34)