Imbree v McNeilly & Anor

Supreme Court of NSW|2006-03-31|Before: Studdert J

CITATION : Imbree v McNeilly & Anor [2006] NSWSC 680

DECISION : (1) I find negligence proved as against the first defendant and the second defendant.; (2) I find contributory negligence to have been proved.; (3) I find it just and equitable that the plaintiff's damages be reduced by thirty percent by reason of that contributory negligence.; (4) I assess the plaintiff's total damages (before such reduction) in the sum of $9,563,731, subject to such adjustment as is required for payments made by the defendant's insurer.

CATCHWORDS : Negligence - motor vehicle accident - driver without licence or permit - whether breach of duty - defences of volenti non fit injuria and illegal enterprise raised - contributory negligence and apportionment. Damages - accident in Northern Territory - action in New South Wales - application of Northern Territory statutory scheme for damages. Tetraplegic plaintiff - numerous heads of damages claimed and considered.

LEGISLATION CITED : Motor Accidents (Compensation) Act 1979, Northern Territory Motor Accidents (Compensation) Amendment Act 2000, Northern Territory

Breavington v Godleman (1988-1989) 169 CLR 41 Boyd v Boynton & Ors 28 NTR 1 Cook v Cook (1986) 162 CLR 376 Godhino v Willard 51 NTR 31 John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503 Joslyn v Berryman (2003) 214 CLR 552 CASES CITED : Marsland v Andjelic (1993) 31 NSWLR 162 Mathews v McCullock of Australia Pty Limited (1973) 2 NSWLR 331 MBP (SA) Pty Limited v Gogic (1990-1991) 171 CLR 657 Nettleship v Western (1971) 2 QB 691 Perrett v Robinson (1988) 169 CLR 172 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529 Southwell v Takashi Tomomoto, Bridgestone Australia [1994] NTSC 105

Paul Anthony Imbree (Plaintiff) PARTIES : Jesse McNeilly (1st Defendant) Qantas Airways Limited (2nd Defendant)

COUNSEL : Dr. A. Morrison SC/A. Stone (Plaintiff) K. Rewell SC/M. Cleary (Defendants)

SOLICITORS : Turner Whelan (Plaintiff) TL Lawyers (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20055/05 PAUL ANTHONY IMBREE v JESSE McNEILLY & ANOR

1 HIS HONOUR: Paul Anthony Imbree brings these proceedings against Jesse McNeilly and Qantas Airways Limited, claiming damages for negligence. On 3 April 2002 the plaintiff was a front seat passenger in a motor vehicle being driven by the first defendant, which vehicle was owned by the second defendant. The first defendant was driving that vehicle in an easterly direction on Larapinta Drive towards Hermannsburg in the Northern Territory when he lost control of the vehicle and it overturned. The plaintiff sustained injury to the cervical spine resulting in tetraplegia.

2 At the time of the accident the plaintiff was a contracts manager and purchasing officer with the second defendant and he was provided with the vehicle involved in the accident as part of his remuneration package. With two of his sons, he was touring in the Northern Territory. The first defendant was a friend of the plaintiff's son, Paul, and with Ben Watson, a friend of the plaintiff, he joined the Imbrees in the touring party.

3 The first defendant had no driving licence nor did he have a learner's permit. He was, however, driving the second defendant's vehicle when it overturned. There has been a strenuous contest on the issue of liability, and apart from denying negligence the defendants have pleaded the voluntary assumption of risk, participation in a joint illegal enterprise and contributory negligence.

4 At the outset I propose to undertake a brief review of the accounts of the accident given by the occupants of the vehicle.

5 The vehicle was a GXL model Toyota Landcruiser station wagon registered in New South Wales, QTX 876. The party was proceeding in it in an easterly direction from Kings Canyon towards Hermannsburg, and the accident happened some eleven kilometres west of Hermannsburg. Driving duties were being shared during the passage from Kings Canyon, as, indeed, they had been throughout the entire excursion. I shall examine more closely the extent of the driving undertaken by the first defendant shortly, but according to the plaintiff the first defendant was driving on Larapinta Drive for some forty minutes before the accident and the plaintiff was seated beside him in the front of the Landcruiser.

6 The plaintiff described the road as "very wide", providing one lane of traffic in each direction. He said there was also a graded area on the sides of the roadway and the vegetation was well away from the road. The plaintiff's observation was that the vehicle was maintaining a steady course as it had done for forty minutes. His first sensation of something untoward happening was when the vehicle veered "fairly sharply to the right" and it headed towards the bushland on the right hand side of the road. The plaintiff said that he reached over to try to pull the steering wheel back, but thought better of it and was yelling out to the first defendant to brake. He said that the vehicle went into the graded area beside the right hand lane and that the first defendant manoeuvred the vehicle back on to the road to the left. He described this as a sharp manoeuvre, probably at forty-five degrees. He said that the vehicle seemed to be under acceleration again when it rolled over on to the driver's side. The plaintiff's estimate of the speed at the time the vehicle rolled was seventy kilometres per hour.

7 He said that before the accident happened he noticed a piece of black tyre on the road. It would have been six to eight inches long and four inches wide, and he saw it when the vehicle was 300 metres away from it. According to the plaintiff, shredded bits of tyres were regularly encountered on the outback roads.

8 Reece Imbree was in year ten at the time of the accident and was sleeping in the back of the vehicle at the time of the accident. His evidence does not assist.

9 Paul Imbree had driven five times during the holiday, the first stretch being after the party left Bourke on the way to the Northern Territory. He drove in Larapinta Drive immediately before the first defendant took over, and he said he had no difficulties in doing so. Nor did he notice the first defendant have any difficulty before the accident happened. Paul Imbree said that he saw the tyre in the centre of the road and the vehicle appeared to be going to the left of it but then moved to the right and started losing traction. It then turned left at right angles after the rear wheels had reached the edge of the road. He was unable to say whether the brakes were applied before the Landcruiser rolled over, the driver's side hitting the ground first.

10 In cross examination Paul Imbree gave the following answers to the following questions: "Q. Your recollection of the movement of the vehicle immediately before the accident, is that it first moved slightly to the left. Is that your recollection? A. That's right.

Q. Then swerved sharply to the right? A. I want to make a difference between how sharp it turned. Firstly when you're describing to the right and then how I describe as the major sharp turn to the left where the rear wheels hit the soft sand on the right-hand side of the road, it was much sharper, that left turn.

Q. You said I think, that you first moved to the left at least to some degree? A. Yes that's right.

Q. You felt the vehicle lose traction? A. That's right.

Q. What do you mean by lose traction? A. The wheels and steering didn't seem to be consistent with what was happening before.

Q. Did it begin to fishtail. Is that what you mean by losing traction? A. Yes, the car did fishtail.

Q. Once that happened, the vehicle then swerved - let's not worry about the degree for the moment - to the right. Is that correct? A. Say that again.

Q. After the vehicle lost traction on the left-hand side of the road, you felt the vehicle swerve to the right? A. Well the vehicle was going to the left and as it turned right, that's where I felt it lost traction.

Q. The vehicle went right to the extent that it went right across the full width of the road surface? A. That's right. The rear wheels did touch the loose surface to the right-hand side of the road.

Q. When the wheels of the vehicle touched to loose surface on the right of the road, did you again feel a loss of traction? A. That's right.

Q. Again some sort of fishtailing effect? A. Yes.

Q. Or at least you felt that one or more of the wheels was not gripping any surface? A. Yes, the rear wheels.

Q. Then the vehicle swerved sharply to the left. Is that right? A. That's right.

Q. Then rolled on to its driver's side? A. That's right.

Q. So the last movement was a sharp swerve to the left and then an overturn on to the driver's side? A. That's right."

11 The plaintiff's friend, Ben Watson, was sitting in the back seat of the car when the accident happened. He said he could not recall anything significant about the way in which the first defendant was driving the vehicle. As to the accident itself, Mr Watson said (T 190): "All I can remember is the vehicle swerving, the vehicle rolling and then it coming to a stop."

12 He thought that the vehicle swerved initially to the right but could not recall whether it swerved in a different direction after that, and as to the speed of the vehicle, he recalled it being slow.

13 It was the recollection of the first defendant that he was driving the Landcruiser "for around half an hour or so" when the accident happened, and was travelling at seventy to eighty kilometres per hour on Larapinta Drive. He said there were corrugations in the roadway. He noticed the shredded tyre on the road when he was approximately fifty metres from it, and he steered the vehicle to the left when he was about thirty metres from it. He said he could feel the vehicle digging into the sand and by this time the vehicle had passed the shredded tyre. He tried to correct the vehicle to steer off to the right, and he accelerated. He described what happened then (T 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 the car to correct it.

Q. What happened when you turned the car to the left in an effort to correct it? A. As soon as I turned the car to the left, the car swerved quite sharply, or the back end of the car actually slid out over the corrugation, and Paul senior was yelling something at me. I can't actually remember what it was, and then at that stage the vehicle rolled."

14 I accept that each of the witnesses whose evidence I have briefly reviewed endeavoured to give a truthful and honest account as to what happened leading up to the accident. I am satisfied that it was the first defendant who was driving the Landcruiser when it overturned, and I am satisfied that the accident happened after the first defendant had steered the vehicle to the left side of the road and that the vehicle thereafter crossed to the right hand edge of the road, and then returned sharply towards the centre of the road under acceleration, overturning in the process.

15 John Baum was a police officer with the Northern Territory Police Service at the time of the accident and was stationed at Hermannsburg. He attended the accident scene on the evening of 3 April 2002, and he took photos at the scene (see Exhibit E). He took six photographs looking east towards Alice Springs and then a series of photographs looking to the west. He observed the tyre track of the vehicle and he marked copies of the photos appearing at 82-85 of Exhibit E locating the relevant tyre marks on those copy photos, which became Exhibit 8. From the markings on the roadway, it appeared to Mr Baum that the vehicle had passed by the shredded tyre debris before turning towards the right. Mr Baum gave these answers to these questions (T 298-299): "Q. Were you able to establish by your examination of the scene in the photographs that the first lateral movement of the vehicle, that is the first steering manoeuvre of the vehicle, was in fact to the left? A. From the tyre marks it appears that the vehicle has moved to the left. It is a very gradual movement. Though whether it was deliberate or uncontrolled, I could not say just from looking at the marks.

Q. Having made the tyre track that you indicated in photograph 82 on the softer material, your analysis was that the vehicle swerved to the right, is that right? A. Yes, the vehicle has made a right-hand side steering manoeuvre.

Q. And has proceeded across the roadway onto the soft material on the right-hand side? A. Correct.

Q. And you photographed the tracks of the vehicle as it went through the soft material on the right-hand side? A. Yes.

Q. And it went back left? A. Yes, very hard left-hand steering manoeuvre was input.

Q. Was there more turning after that or did the vehicle turn whilst it was still turning left? A. From the severe left-hand side steering input, the vehicle went broadside as we described before sliding sideways. The wheels have gripped into the ground and the vehicle has overturned and has come to its final rest, so there were no more steering inputs after that."

16 I accept the evidence which Mr Baum gave. His observations and conclusions appear to me to be consistent with the description that the first defendant gave concerning the circumstances in which the accident occurred.

17 I am satisfied that the accident occurred on a straight section of roadway in fine and dry conditions. Proceeding east, the first defendant would have had the sun behind him, and I am satisfied would have had a clear view of the roadway in front of him for no less than 300 metres. When Mr Wingrove attended the scene on 6 January 2006 he measured the road width as varying between eleven and twelve metres, with a slight incline to the east. Whilst no doubt the condition of the road surface would vary from time to time depending upon when it had last been graded, it is probable that the width of the road and the slight incline to the east observed by Mr Wingrove would have been more or less the same as at the date of the plaintiff's accident.

18 What was the condition of the road surface when the accident happened? Exhibit 7 reveals that what the records describe as a "full maintenance grade 1 pass" was carried out on 8 August 2001. The road surface was attended to again in February 2002.

19 As the Landcruiser proceeded east towards Hermannsburg, I am satisfied that it passed road signs beside the northern edge of the roadway which recorded these messages: "BEWARE LOOSE SURFACE DUST CORRUGATIONS" (Exhibit 2)

and "GRAVEL ROAD CAREFUL DRIVING TECHNIQUES ARE ADVISED" (Exhibit 4)

20 The notice depicted in Exhibit 2 was located ten kilometres west of the accident scene and the notice recorded in Exhibit 4 was located 10.3 kilometres west of the accident scene.

21 The plaintiff gave evidence that the signs depicted appeared typically on outback roads. Mr Baum, when asked about the signs (T 304), agreed that signs of that type were to be found "quite commonly on similar roads all around the Alice Springs area". Mr Baum's attention was directed to Exhibit 3, depicting a road sign beside a paved section. He was then asked these questions and gave these answers (T 288-289): "Q. Incidentally, from your experience on those, on that, on Larapinta Drive, does each of those signs accurately depict the state of the roadway to come beyond the sign? A. In my opinion they all depict the entire road. They're just general warnings, you know, look out for what's coming sort of thing.

HIS HONOUR: Q. They're signs that could have been placed anywhere along the road just as relevantly as where they are? A. Yes, very much so. They're at the beginning of the unsealed section at both ends of the road and then periodically through the whole stretch."

22 The other former Northern Territory Police Force officer, Andrew Craig, gave evidence consistent with that given by Mr Baum. Mr Craig agreed (at T 311) that signs like those depicted were to be found on roads other than Larapinta Drive.

23 According to Mr Baum, Larapinta Drive is a major tourist road (T 300). Unlike some other roads in the area, Larapinta Drive was not posted as being unsuitable for two wheel drive vehicles and the normal unrestricted speed limit applied. When taken to the photographs appearing in Exhibit E, Mr Baum considered that the section of roadway where the accident occurred was in reasonably good condition (T 301). As to the corrugations, he said he had seen worse. He was asked these questions and gave these answers (T 301): "Q. Do you agree that that section of Larapinta Drive at the time was in good condition? A. I have seen it better and I have seen it worse.

Q. Indeed that was one of the better sections of Larapinta, was it not, the area where the accident occurred? A. That would be a fair comment. It is fairly standard for the whole length of Larapinta Drive."

24 Mr Baum used the road regularly prior to the plaintiff's accident and he said he travelled along it between 100 and 120 kilometres per hour.

25 Mr Baum said that the dust at the side of the road was not bull dust, and he agreed, when his attention was drawn to the photographs in evidence, that the dust did not appear to be unduly deep.

26 Mr Baum's attention was drawn to a statement which he made on 13 November 2002 in which he was asked these questions and gave these answers (T 304-305): "Q. Would you agree that you said in that statement that it was a fairly good gravel surface? A. I don't have a copy of my statement.

Q. (Shown statement). Read that to yourself? A. Yes.

Q. Would you agree that you had described it as a fairly good gravel surface? A. Yes.

Q. You had also said it was heavily corrugated due to its regular traffic? A. Yes.

Q. But this particular section was not heavily corrugated? A. The corrugations are present. It is heavier than other bits, not as heavy as some bits.

Q. The section where the accident occurred was not heavily corrugated, do you agree with that? A. Not compared to other sections, I would agree.

Q. In general where this accident occurred the road was a good gravel surface? A. As far as gravel road goes I think it is fairly good, yes."

27 I accept as reliable the evidence which Mr Baum gave concerning the condition of the roadway and as reviewed above.

28 Mr Baum's evidence as to the condition of the road does not, of course, stand alone, and I am mindful as to what Mr Ristell said. Mr Ristell was qualified to give evidence on behalf of the defendants, and is a driving instructor whose field of expertise is the training of drivers in four wheel drive vehicles. He attended the scene of the accident on three successive days in July 2005. He described the road (T 361) as "extremely rough, corrugations, bull dust, potholes, with a number of tyre remnants on the sides of the road that bear testimony to the fact that it is very rough surface. It is typical of the roads in that part of the world around Alice Springs… It is a very challenging road to drive on. It certainly does require additional skills."

Mr Ristell went on to say: "I think most city drivers would be shocked how rough the conditions are, how severe the corrugations, potholes and bull dust is. Without warning there are very few signs which indicate what is coming up."

29 He considered it would be difficult for an inexperienced driver to appreciate what the vehicle might do when it had to cross corrugations in the road surface (T 362).

30 Mr Wingrove, who I accept was an experienced dirt road driver, did not consider the road surface of Larapinta Drive to be "a bad road by any means" at the time that he drove on it. He rather considered it to be "a good quality road" (T 261). He recognised, however, that the road could be expected to deteriorate between one grade and another and he was not aware how long it was before his inspection that the road had last been graded, but it emerged in evidence that the road was attended to within a month of his inspection in December 2005.

31 Mr Craig said that he drove along Larapinta Drive when stationed in Alice Springs approximately twelve times. That was in the period between 1995 and 2005. In that period, Mr Craig said that the road condition varied from time to time and along the road itself. He said there were sections where the road could be quite rough on occasions and quite reasonable on occasions (T 307).

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).

33 Paul Imbree said that when he was driving along Larapinta Drive before the first defendant took his turn the condition of the road was similar to that shown in the photographs in Exhibit E. He said there were no significant creeks on the road and the road was flat. He experienced no difficulties in driving on it (T 171).

34 Ben Watson, when shown the photograph on p 81 of Exhibit E, said that the road was much the same along Larapinta Drive and that there was nothing in the road surface as the vehicle travelled along it that caused him any concern.

35 The first defendant described the road surface in this passage of his evidence (T 270): "Q. How would you describe the surface of the road as you drove along it. How did it feel to drive on? A. The surface of the road was fairly good being very long and straight for the whole time I was driving. The surface of the road was generally - it was a wash board sort of surface to it.

Q. What do you mean by a wash board surface? A. It was sort of just uneven, sort of up and down.

Q. Were there corrugations? A. Yes, sorry corrugations.

Q. Is that what you mean by wash board? A. Corrugations being in the centre of the road. It was a fairly good road to drive on, but the slower I went, the more you'd sort of notice the corrugation in the traction of the vehicle.

Q. What did you notice about the corrugations in terms of traction? A. There was no problem with traction being on the corrugation. You could just feel it in the steering and just on the surface of the vehicle the slower the vehicle went."

36 The photographs in Exhibit E and Exhibit B depict the road surface as at the date of the accident, and, as previously observed, I consider Mr Baum's evidence about the road surface at the time of the accident to be reliable.

37 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.

38 I find myself assisted on this question of causation by evidence that Mr Wingrove gave. In his report dated 31 January 2006, Mr Wingrove commented upon the significance of the acceleration at the time that the first defendant steered to the left since this caused the vehicle to oversteer. In cross examination Mr Wingrove gave evidence as follows (T 255-256): "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 oversteer. Q. But of course what put him in that position in the first place was his failure to see the debris on the road early enough? A. Yes, that, but - how can I put it - the accident still need not necessarily happen by failing to see that and failing and doing the right turn. It's the subsequent going into the material, in the loose surface, I don't think that was a significant factor, and making the left turn was all that significant, except that when he applied the acceleration the rate of the turn - now I'll try to explain that. If you look at the accident police photos it shows the vehicle actually started, starting to point back from the direction from whence it had come. It shows the steer wheels on the vehicle almost in a parallel position. Now, at some stage if he steered to the right and then steered to the left, the vehicle had to be parallel with the edge of the road. Now, to get it to turn (witness indicating) so that it is perpendicular to the road in half of the width of the road that's almost at full lock for that type of vehicle. Now to get it into full lock the driver would of had to come from the right steer to the left steer and get it into the full lock, which would have required one more full circle of the steering wheel. Now, I don't believe a driver of Mr McNeilly's experience could have got that wheel around in that sort of a lock quick enough in that sort of distance. So the only way the vehicle could have actually spun around past the perpendicular and further was the acceleration that brought the back of the vehicle around.

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 oversteer 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. When you start to be a learner you learn these things and you're instructed in these things and unfortunately I think the bulk of the learning is from experience. Certainly I didn't learn from instructions from my father.

Q. You see, in fact the succession of errors that Mr McNeilly made bred on each other didn't they? A. Yes, well the accident could not happen if he just simply steered to the right and went off into the paddock.

Q. Well, firstly the accident wouldn't have happened in all probability if he had seen the object in the road 300 metres ahead? A. Yes, straddled it or stopped the vehicle.

Q. Because there would have been a range of fairly straightforward options available to him? A. Yes, I agree with that.

Q. Secondly, if having finally seen the debris on the roadway he had remained calm and simply driven around it, over it, or straddled it, the accident probably wouldn't have happened? A. Yes.

Q. Thirdly, if he hadn't moved to the left sufficient to take him onto 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 west 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. "

39 I accept that it was the sharp change of direction to the left after the first defendant 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.

40 Was the first defendant negligent in the circumstances of the accident?

41 It was submitted on behalf of the defendants that the first defendant owed to the plaintiff no duty of care in the circumstances of this case having regard in particular to the following matters:

(a) the fact that the plaintiff allowed the first defendant to drive the vehicle, knowing he was unlicensed and inexperienced;

(b) the plaintiff allowed the first defendant to drive on a roadway which was unsuitable;

(c) the plaintiff allowed the first defendant to drive the vehicle notwithstanding the road signs to which reference has been made;

(d) the plaintiff allowed the first defendant to drive in circumstances when he knew that the first defendant's ability to deal with an obstruction on the roadway was compromised by his lack of training, skill and experience;

(e) the plaintiff knew that the first defendant required careful and continuous instruction but failed to give it.

42 In these circumstances it was submitted that in allowing the first defendant to drive the plaintiff denied himself the benefit of a duty of care.

43 I am not attracted by the defendants' submissions to the above effect. I will return to consider the various matters raised presently. However, in my opinion, it does not follow in the circumstances to which Mr Rewell referred that the first defendant owed no duty of care to the plaintiff; however, the circumstances that the first defendant was unlicensed, without a permit and of limited experience do bear upon the standard of care required of him.

44 Dr Morrison submitted that the decision of the High Court in Cook v Cook (1986) 162 CLR 376 was no longer to be regarded as the law. He submitted that the English position in Nettleship v Western (1971) 2 QB 691 ought to be followed. He submitted that it was undesirable that there be a sliding scale of duties of care and corresponding standards of care, and referred to the comments of Professor Fleming on Cook v Cook in the 9th edition of the Law of Torts (at 341-342).

45 I note Dr Morrison's submission but I consider that I am obliged to follow Cook v Cook, and that the principles to be found in that decision are directly in point. In Cook the driver was neither experienced nor the holder of a licence or a permit but was invited by the passenger to drive the car. When seeking to avoid a parked vehicle, the driver accelerated and lost control of the car. In the result it mounted the footpath and crashed into a concrete pole. The injured passenger failed at first instance but an appeal was allowed with a finding of contributory negligence. The High Court dismissed the further appeal.

46 In their joint judgment in Cook, Mason, Wilson, Deane and Dawson JJ, in a passage commencing at 382, stated principles which are conveniently summarised in the headnote to the report: "(1) Where the plaintiff as passenger has been injured in a vehicle driven by the defendant, there is ordinarily a relationship of proximity of driver and passenger, and the standard of care is that reasonably to be expected of an experienced, competent driver. The standard is objective and impersonal, not being modified or extended by the driving history, ability or idiosyncrasy of the particular driver. (2) Exceptional facts may alter the relationship between a driver and a passenger so as to import a different standard of care, adjusted to the relationship. Such a case is that of driving instructor and pupil, where the standard remains objective but is adjusted to fit the special relationship. (3) The onus of establishing facts founding a relationship of such a special or different category as to import a standard of care other than that of a qualified and competent driver falls on the party asserting it. (4) Actions fairly to be seen as the result of known inexperience or lack of qualification in the driving of a vehicle, rather than as having been caused by superimposed or independent carelessness, do not of themselves, constitute a breach of duty owed by driver to passenger."

47 Their Honours considered there was nevertheless a breach of the duty of care which the driver owed to her passenger. Their Honours said (at 389): "With some hesitation, we have come to the same conclusion as that which was reached by Johnston J That is that the appellant's action in deliberately accelerating so as to avoid an object in the path of the vehicle she was driving involved, in the absence of any suggestion of skidding and in circumstances where she was deliberately steering the car off the roadway, an element of carelessness over and above what could be attributed merely to inexperience. It has not been disputed that that acceleration was a cause of the accident and was largely responsible for the severity of the impact when the vehicle came into contact with the stobie pole and the respondent was thrown against the windscreen. Any such superimposed carelessness on the part of the appellant constituted a breach of the duty of care which she owed to the respondent. That being so, it seems to us that the conclusion reached by the majority of the Full Court of the Supreme Court was correct on the particular facts of the case..."

48 Contrary to the defendants' submission, I do not accept that the application of the principles to be found in Cook v Cook would lead to the conclusion that there was no breach of duty in the present case. 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.

49 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.

50 I am satisfied that the first defendant was negligent and that his negligence was causative of the accident.

51 I consider that the defendants' reliance upon the defence of volenti non fit injuria is misplaced. I am not persuaded that the plaintiff in permitting the first defendant to drive the Landcruiser voluntarily assumed the risk of injury. In order for the volenti defence to succeed, it is necessary that the plaintiff knew the facts relied upon as constituting the danger and also that he fully appreciated the danger inherent in such facts. The defence of contributory negligence will, of course, require discrete consideration presently, but I am not persuaded that the plaintiff ought be treated as having accepted the risk which here materialised. On the contrary, I accept the evidence which the plaintiff gave in cross examination (T 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, didn't you? 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 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."

52 The defendants have submitted that the plaintiff ought not to succeed because of his participation in an illegal enterprise. The plaintiff was aware that the first defendant was unlicensed and he acknowledged in cross examination that he knew it was illegal to put the first defendant in control of the vehicle (T 82). He also agreed that one of the reasons why he did not let the plaintiff drive on sealed roads was to minimise the risk of detection by police (T 81). Mr Rewell submitted that the illegal activity in which the first defendant engaged with the permission of the plaintiff presented a greater challenge to the first defendant's driving skills because he was driving on an unsealed road. In the circumstances it was submitted the plaintiff ought to be deprived of an award of damages on the grounds of public policy. I do not accept that submission.

53 In Mathews v McCullock of Australia Pty Limited (1973) 2 NSWLR 331, a decision to which Mr Rewell referred in his written submissions, the plaintiff was injured when riding a motorcycle whilst disqualified from holding a licence. His injury was sustained when his cycle was struck from behind by another vehicle. The plaintiff's illegal behaviour in riding his cycle without a licence did not preclude him from recovering damages. In Cook v Cook (supra), the plaintiff allowed the inexperienced driver, who held neither a licence nor a permit, to drive the motor vehicle. The unlawful nature of the conduct in the course of which the plaintiff was injured did not preclude an award of damages in that case.

54 The two cases to which I have referred illustrate that in Australia the fact that the plaintiff may have been acting illegally at the time injury was sustained is not of itself a circumstance that defeats a claim for damages. I do not consider that public policy requires that the plaintiff be deprived of any entitlement to damages in circumstances in which he has been gravely injured in consequence of the negligence of the driver of the vehicle in which he was travelling.

55 I consider that the plaintiff has proved an entitlement to damages by reason of the negligence of the first defendant, but this brings me to a consideration of the defence of contributory negligence.

56 It has been submitted on behalf of the defendants that even if the plaintiff is found to be entitled to succeed, he must have been guilty of "a high degree" of contributory negligence:

(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 proactive or reactive driving skills.

57 Mr Rewell correctly submitted that the test of contributory negligence is, of course, an objective one: see Joslyn v Berryman (2003) 214 CLR 552, esp per McHugh J at 564 [32] and per Gummow and Callinan JJ at 575 [70].

58 The first defendant was at the time of the accident sixteen years of age. He had never held a driver's permit. He failed in an attempt to gain a permit two months before the accident because he was unable to produce a birth certificate. Five days before the trip began he failed to obtain a permit when he failed the theory test at the RTA office at Miranda.

59 The first defendant had gained some driving experience with the help of his grandparents. He had four or five lessons on a Land Rover in the sand dunes at Kurnell. Each lesson was of thirty to forty-five minutes duration, and the maximum speed he was allowed to travel was fifty kilometres per hour.

60 In addition to the lessons on the Land Rover, the first defendant had had four or five lessons driving a Volvo at the Woronora Cemetery.

61 The plaintiff, of course, was aware that the first defendant had never held a learner's permit and the plaintiff had never seen him drive before the party left Sydney. He said he understood from discussion with his own son that the first defendant drove regularly, and his son had pointed out to the plaintiff the Land Rover "Jesse drives" (T 41).

62 I accept that the plaintiff did not allow the first defendant to drive before the party left Bourke because to have allowed him to drive on sealed roads would have involved the risk of detection by the police and would also have exposed the first defendant to driving in greater traffic than on the dirt roads where the first defendant's experience on this particular trip commenced.

63 I accept that the first defendant drove on four occasions before the party reached Larapinta Drive. The first occasion was after the party left Bourke and he drove then for thirty or forty minutes. The second and third occasions were on the Simpson Desert, and on each of these occasions again he drove for thirty to forty minutes. The first defendant drove again in the vicinity of the Finke River; once again he drove for thirty to forty minutes.

64 According to the first defendant, the plaintiff instructed him, as he did his own son, that he was not to travel at more than seventy to eighty kilometres per hour. I accept that that instruction was given and that it was obeyed. The first defendant said that the conditions encountered beyond Bourke were similar to those on Larapinta Drive. He encountered corrugation and potholes and puddles and dips but he said he was able to deal with these conditions without difficulty. When driving in the Simpson Desert, the first defendant said the plaintiff instructed him where to position the vehicle, and the tyre pressure was lowered for the Simpson Desert conditions. When he drove again for the fourth time in the Finke River vicinity, according to the first defendant the road conditions were poorer there than on Larapinta Drive. There were deeper corrugations and potholes there. However, he said that he had no difficulty with that driving.

65 Apart from his own driving experience on the trip, the first defendant said that he watched his friend, Paul Imbree, when he was driving.

66 According to the first defendant, the plaintiff told him at various stages where he was to drive, and he did what he was told.

67 I accept the first defendant's account of the extent of the driving experience he had on this trip, where he had it and what instruction he was given.

68 Ben Watson entertained no concern about the first defendant's driving before the accident, and neither did Paul Imbree.

69 The plaintiff recounted little by way of instruction given to the first defendant apart from the imposition of the speed limit already noted. The plaintiff said he told the first defendant where to place his hands on the steering wheel, although the plaintiff did not detail instruction given as to the course the first defendant should set at any particular time. I do accept that instruction was given as described by the first defendant.

70 The plaintiff said that in the first driving spell that the first defendant had he told him where to place his hands on the steering wheel but thereafter on that occasion the first defendant drove without further instruction. In the Simpson Desert, according to the plaintiff, the first defendant drove safely and steered a good course. In the vicinity of the Finke River, the plaintiff said that the first defendant drove safely and comfortably.

71 I accept that nothing untoward occurred on any of the occasions that the first defendant drove the LandCruiser before he took the wheel on Larapinta Drive. I accept that up until that point of time he responded to such instruction as was given. I also accept that nothing untoward happened until immediately before the accident.

72 The plaintiff had no precise information as to the first defendant's previous driving experience, which I accept was as described by the first defendant. The plaintiff ought to have made it his business to find out details of the first defendant's prior experience such as were described by the first defendant in his evidence.

73 I am not persuaded that the plaintiff failed to exercise reasonable care for his own safety by permitting the first defendant to drive at all. The first defendant had to build on the experience his grandparents had given him by some means or other if he was to become an experienced driver, and the plaintiff, himself an experienced driver, had the opportunity to observe and assess the first defendant for a period of no less than two hours before deciding to allow the first defendant to drive in Larapinta Drive.

74 Having earlier decided to allow the first defendant to drive, it seems to me that the exercise of due care required of the plaintiff that he afford reasonable instruction, and this, of course, applied not only to the four episodes of driving experience undertaken prior to reaching Larapinta Drive, but also to the driving in Larapinta Drive.

75 Was the plaintiff negligent in allowing the first defendant to drive in Larapinta Drive? In Mr Ristell's opinion, having regard to his own expertise as a driving instructor, Larapinta Drive was an inappropriate road upon which to teach an inexperienced driver.

76 Mr Ristell was asked these questions and gave these answers (T 365-366): "Q. Have you had experience in teaching young drivers to drive four-wheel drive motor vehicles? A. Yes, extensive experience in that.

Q. Do you regard Larapinta Drive as an appropriate road surface on which to teach young, inexperienced drivers to drive four-wheel drives? A. At some stage of their training that sort of thing may be used but not early on and not at high speed.

Q. Firstly, to deal with the expression early on, if this boy had had a total of less than eight hours driving experience in all on any surface, would that be sufficient to instruct him on Larapinta Drive? A. Definitely not.

Q. If his offroad experience, as I have detailed to you earlier, the sand dunes at Kurnell, sand on the Simpson desert and two other sections of rough roadway, would that be sufficient being less than six hours in all, probably less than five, to warrant him being taught or allowed to drive on Larapinta Drive? A. No, that experience would be virtually irrelevant."

77 Mr Ristell emphasised the importance of instruction and opined that a speed of eighty kilometres per hour on Larapinta Drive was too high a speed for a person of the first defendant's inexperience. He gave this evidence (T 381): "Q. Leaving aside for a moment the suitability or unsuitability of Larapinta Drive per se, was the experience that Jesse McNeilly had obtained either off-road or on road, in your view, sufficient for him to be permitted to drive along Larapinta Drive at a speed of 80 kilometres an hour.

Q. Knowing what you now know of the experience that Mr McNeilly had in off-road, and indeed, in on-road conditions, was a direction that he be permitted to drive at up to 80 kilometres an hour, an appropriate speed for off-road driving on his part at that stage of his learning career? A. Definitely not.

Q. In addition to matters concerning speed, when a driver is taken off-road for the development of experiential skills, is instruction a part of the process of obtaining those skills safely? A. Absolutely, extensive instruction.

Q. Knowing what you know of Mr McNeilly's off-road skills before he was permitted to drive on Larapinta Drive, was a level of instruction that was confined to how to hold your hands on the wheel and don't drive faster than 80 kilometres an hour, sufficient in terms of instruction for off-road driving?

WITNESS: A. Not even close. No, definitely not sufficient."

78 Mr Wingrove did not agree with Mr Ristell's assessment of Larapinta Drive, and he did not regard the road as being unsuitable for the first defendant to drive upon. Indeed, in cross examination (T 333), Mr Wingrove opined that "it was a good road for a person to get some experience on." He added that it was a road "that I would have put a member of my family on to learn, to be honest." Mr Wingrove would, however, have expected that the first defendant would have been instructed concerning the various potential hazards and recovery skills that might be required (T 334).

79 Mr Poulter has instructed drivers in the use of four wheel drives since 1993 and he has instructed novice drivers in the use of such vehicles. Over the course of some ten years he has taken them on four wheel drive tours in the outback. He said he would not have hesitated to allow an inexperienced driver to drive on Larapinta Drive with supervision and instruction (T 341). He considered that eighty kilometres per hour was an acceptable speed (T 343). Indeed, on a corrugated surface like Larapinta Drive he considered a constant speed of eighty kilometres per hour was to be recommended (T 350).

80 Whilst he disagreed with the proposition that Larapinta Drive was a road that was unsuitable for a learner, Mr Poulter considered that Larapinta Drive was not an appropriate place for a novice who was not under instruction or supervision (T 352).

81 Dr Morrison submitted that the Court ought to prefer the opinions as to the suitability of Larapinta Drive for learners as expressed by Mr Wingrove and Mr Poulter to the opinion as to the unsuitability of that location as expressed by Mr Ristell. It was submitted that Mr Ristell's evidence was unsatisfactory in a number of respects:

(i) in the assertion that he had difficulty in controlling his vehicle at eighty kilometres per hour on Larapinta Drive and hence that this was an unsafe speed for a learner;

(ii) in his assertion that the driving experience in the Simpson Desert afforded no experience or skill learning for Larapinta Drive, even though he acknowledged that it involved driving over tracks as well as sand dunes;

(iii) Mr Ristell said that the police photographs demonstrated very severe corrugations, contrary to the view of Mr Baum;

(iv) Mr Ristell was entirely dismissive of the experience gained by the first defendant at Kurnell and Woronora Cemetery;

(v) Mr Ristell described Larapinta Drive as extremely rough, contrary to the evidence of Mr Baum;

(vi) Mr Ristell disagreed entirely with the proposition that the advisory signs were intended to convey a general warning regarding the state of the road at large rather than a warning as to a specific area of it. This evidence did not accord with the evidence of Mr Baum

82 I was particularly impressed with the evidence of Mr Baum, who, by reason of his posting at Hermannsburg, was best qualified to assess the road conditions on Larapinta Drive. I prefer his assessment of those conditions specifically referable to the time of the accident than Mr Ristell's assessment formed following an inspection in July 2005. I am not persuaded by Mr Ristell's evidence that it was unsafe to travel along Larapinta Drive at a speed in excess of eighty kilometres per hour. Mr Baum's evidence persuades me otherwise.

83 Both Mr Wingrove and Mr Poulter considered Larapinta Drive was not inappropriate for a learner to drive upon and having reflected upon the evidence of all three witnesses, and bearing in mind the various matters raised by Dr Morrison concerning Mr Ristell's evidence, I do not find that the plaintiff was negligent merely in permitting the first defendant to drive on Larapinta Drive.

84 However, I consider that there was a need to provide the first defendant with appropriate instruction. The only instruction that the plaintiff contends he gave to the first defendant was as to the speed at which he should travel and as to the way in which he should hold the steering wheel. More was required than that. The plaintiff should have given the first defendant further instruction relevant to the conditions likely to be encountered on Larapinta Drive. Whilst the first defendant acknowledged that common sense suggested he ought not to have accelerated when he did and whilst in doing so he failed to comply with his grandmother's instruction, it seems to me that prudence required that the plaintiff instruct the first defendant, before he drove on Larapinta Drive, that in the event that the vehicle entered on to the shoulders he ought not to change direction sharply and he ought not to accelerate when seeking to return to the road surface proper. In the exercise of due care, it was not enough for the plaintiff to sit in the front passenger seat observing what the first defendant was doing. The exercise of due care called for ongoing instruction as required.

85 In addition to the instruction which I have already identified as instruction that ought to have been given, it seems to me that prudence required that the plaintiff be instructed not to change direction to pass over an object such as the shredded tyre which appeared on the road surface. The evidence was that such an object was frequently observed, if not on then beside the road. According to the plaintiff, he observed the tyre remnant which influenced the first defendant to change direction when the LandCruiser was 300 metres away from it. The plaintiff said he was unable to recall if such an object had been encountered when the first defendant was driving earlier. It seems to me that prudence required that the plaintiff, having seen the tyre, should have pointed out to the first defendant that the proper course was for him to drive over the top of it.

86 Caution must be exercised in avoiding a determination as to the content of appropriate instruction only with the benefit of hindsight, but it seems to me that in the three areas to which I have referred, there was a need for the plaintiff in the exercise of due care to give the first defendant relevant instruction before the first defendant began to drive on Larapinta Drive. I find no such instruction was given, and I find on the balance of probabilities that the failure to give such instruction constituted contributory negligence.

87 I do not overlook the assertion that the plaintiff was negligent in allowing the first defendant to drive at a speed of up to eighty kilometres per hour. However, considering the totality of the evidence in point, I am not persuaded by what Mr Ristell said that the plaintiff was negligent in allowing the first defendant to drive at a speed of up to eighty kilometres per hour. His negligence was in permitting the first defendant to drive absent the instruction on the matters I have identified. Failure to instruct I consider contributed to the harm that the plaintiff suffered.

88 How is fault to be apportioned in this case? Mr Rewell submitted that the plaintiff ought to bear most of the responsibility for the occurrence of the accident and advanced a suggested assessment of seventy-five percent for contributory negligence. Dr Morrison's submission was to the contrary, and he submitted that if there was to be a finding of contributory negligence, it would not exceed twenty to twenty-five percent.

89 In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529 Gibbs CJ, Mason, Wilson, Brennan and Deane JJ said in their joint judgment (at 532-533): "A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201… 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, ie 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 Gypsum 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. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination…"

90 I must address the apportionment issue with the considerations identified in Podrebersek very much in mind.

91 The conclusion I have reached is 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. The assessment of damages

92 By reference to what principles are damages to be assessed in this case?

93 It is now settled that the law governing the assessment is the law of the Northern Territory: see John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503. Whilst that much is clear, the governing principles for the purposes of this claim are nevertheless a matter of contention. The argument centres upon the construction and application of the Motor Accidents (Compensation) Act, Northern Territory, and its provisions such as were in force on 3 April 2002.

94 The law of the Northern Territory was changed by the introduction of the Motor Accidents (Compensation) Act 1979 which eroded common law rights for those living in the Northern Territory. When the Act came into force on 1 July 1979, s 5 provided: "(1) Subject to sub-section (2), no action for damages shall lie in the Territory in respect of the death of or injury to a resident of the Territory in or as a result of an accident that occurred in the Territory. (2) Subject to sub-section (3), nothing in sub-section (1) deprives a person of the right to bring an action for damages for pain and suffering or loss of amenities of life. (3) A person who has received or has elected to receive a benefit under section 17 cannot commence or continue an action referred to sub-section (2)." (Emphasis added)

95 Section 5 was repealed in 1997 and in its place a new s 5 was introduced, providing thus: 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; or (ii) for future loss except at discounted present values; in or as the result of an accident that occurred in the Territory. (2) In subsection (1)(b) - (a) "non-economic loss" means - (i) pain and suffering; (ii) loss of amenities of life; (iii) loss of expectation of life; or (iv) disfigurement; and (b) "future loss" means - (i) future economic loss; (ii) future loss of earning capacity; or (iii) future expenditure on needs resulting from the injury, and includes - (iv) in the case of the person's death, future loss by a spouse, dependent child or dependent parent of income due to loss of earning capacity referred to in paragraph (ii); and (v) a claim for damages under the Compensation (Fatal Injuries) Act …"

96 There was a further amendment to s 5 effected by the Motor Accidents (Compensation) Amendment Act 2000 which inserted after sub-section (1)(b)(ii) the following: "(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"

97 Hence, as at 3 April 2002, s 5 was in the form following: (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 . (2) In subsection (1)(b) - (a) "non-economic loss" means - (i) pain and suffering; (ii) loss of amenities of life; (iii) loss of expectation of life; or (iv) disfigurement; and (b) "future loss" means - (i) future economic loss; (ii) future loss of earning capacity; or (iii) future expenditure on needs resulting from the injury, and includes - (iv) in the case of the person's death, future loss by a spouse, dependent child or dependent parent of income due to loss of earning capacity referred to in paragraph (ii); and (v) a claim for damages under the Compensation (Fatal Injuries) Act…" (Emphasis added)

98 "Resident of the Territory" is defined in s 4 of the Act. It is unnecessary for present purposes to record that definition here. Plainly, the plaintiff was not a resident of the Territory at the time of his accident, and that much is common ground between the parties.

99 It follows, therefore, that s 5(1)(a) does not apply. Dr Morrison submitted that s 5(1)(b) does not apply either because whilst the plaintiff's accident occurred in the Northern Territory, the action the plaintiff brings is not being brought in the Territory. So it is that Dr Morrison contends s 5(1) has no application and in the result Dr Morrison submits that the plaintiff is entitled to have his damages assessed, unfettered by the provisions of the Territory legislation and therefore by reference to common law principles, including the paramount principle that damages are to be awarded by way of compensation so as to put the plaintiff, so far as money can do it, in the position in which he would have been had he not been injured.

100 Dr Morrison submitted that when one considers the Second Reading Speeches at the time of the introduction of the Act in 1979 and at the time of the amendment to s 5 in 2000 they support the proposition that a plaintiff in the position of this plaintiff was not intended to be affected by the Northern Territory legislation.

101 In the Second Reading Speech of the Chief Minister on 8 March 1979, he said concerning s 5: "Clause 5 removes the right to initiate actions in negligence as a means of victims securing compensation for motor accidents. That right is replaced by the benefits later in the Bill. Honourable members will note that the clause does not seek to remove the rights of visitors to the Territory or the common law rights of Territorians outside the Territory…"

102 In the Second Reading Speech on 11 May 2000 concerning the amendments identified earlier in this judgment, the following appears: "The consultants recommended, and the Government accepts, that the common law should be modified as it is in interstate jurisdictions to cap the level of awards for future economic loss payable to non-Territorians, to be the same as the level payable to the residents under the scheme. This will be achieved by the addition of the new paragraph 5(1)(b)(iii) to the current Act…"

103 And, then: "The Government recognises that the provisions will restrict the level of damages awarded to non-residents by the Northern Territory Courts but consider that the advantages of the continued financial viability of the scheme, and the maintenance of the current level of benefits payable to Territorians, far outweighs the detriment."

104 Dr Morrison submitted the legislation in the Northern Territory does not affect an action brought by a non-Territorian suing in a jurisdiction outside the Northern Territory where the motor vehicle involved was registered and insured outside the Northern Territory.

105 Dr Morrison drew attention to the reference to s 13 in s 5(i)(b)(iii). Section 13 provides: "13. Compensation for loss of earning capacity (1) A person who suffers an injury in or as a result of an accident that occurred in the Territory or in or from a Territory motor vehicle - (a) who was, at the time of the accident, a resident of the Territory; and (b) whose capacity to earn income from personal exertion (either physical or mental) is, in the opinion of the Board, reduced as a result of the injury, shall be paid such compensation for that loss of earning capacity as is provided in this section…"

106 Section 13 expressly limits its scope to residents of the Territory and provides for involvement of "the Board", which the Supreme Court in this State is not in a position to consult. Hence, Dr Morrison submitted, it is clear that the legislature did not intend that s 13 should apply to non-Territorians suing outside the Territory, and it follows that the reference to s 13 in s 5(1)(b)(iii) was a reference not intended to apply to non-Territorians suing outside the Territory either.

107 Dr Morrison next made reference to s 41 of the Act. Section 41 is in these terms: "41. Savings and enforcement of certain rights (1) In this section 'authorized insurer' and 'third-party policy' have the same meaning as they respectively have in Part V of the Motor Vehicles Act as in force immediately before the commencement of this Act. (2) Notwithstanding anything in this Act, where an action in respect of the death or injury of a person in or as a result of an accident would have lain under the law applicable immediately before the commencement of this Act had the accident then occurred, nothing in this Act shall apply so as to prevent a person pursuing such action against a person who, at the time of the accident, was the holder of a current third-party policy. (3) Notwithstanding anything in this Act, the Board may, as a condition of paying or continuing to pay a benefit under this Act - (a) in a case referred to in subsection (2); or (b) in a case where a person entitled to a benefit under this Act has a right of action against any other person as a result of the accident in respect of which that entitlement arose, require the person to commence or continue an action against the person holding a current third-party policy or that other person, as the case may be…"

108 Dr Morrison submitted that s 41 made clear that in respect of existing and continuing third party policies, the existing common law rights remain.

109 Mr Rewell submitted that the assessment of damages in this case was governed by the provisions of s 5 of the Motor Accidents (Compensation) Act. He submitted that the introductory words of s 5(1) apply both to residents in the Territory, whose position is considered in (a), and to non residents, whose position is considered in (b). If the words are to be given the meaning for which the plaintiff contends, it was submitted that residents could avoid the effect of s 5 by commencing their proceedings in some other State or Territory and hence that the purpose of the Act would be frustrated.

110 In responding to that submission, Dr Morrison referred to the decision of Martin J in Godhino v Willard 51 NTR 31. That case concerned the Northern Territory statute in its earlier form as in operation in November 1981. The plaintiff in that case left the Northern Territory after the accident and argued that since he was no longer a resident at the time of bringing proceedings, s 5(1) did not apply. His Honour's remarks in dealing with the submission were obiter because his Honour determined that s 41(2) saved the right of a person injured in an accident to pursue an action against a person who at the time of the accident was the holder of the third party policy. His Honour did express the opinion however that the relevant time of residence for the purpose of s 5 was the time of the accident itself. His later departure from the Territory was, in his Honour's view, irrelevant.

111 The facts in Godhino were different from those in the present case and ,of course, the action which was brought was brought in the Northern Territory. Section 5 was in a different form then, and I do not find the reference to Godhino particularly helpful.

112 What is clear in the present context is that had the plaintiff brought this action in the Northern Territory, s 5(1)(b) would have required that damages be assessed in accordance with that provision.

113 If the effect of the statutory expression of s 5(1) was to avoid the operation of the sub-section in a case where, as here, the plaintiff non-resident chose to sue outside the Northern Territory, this would place the plaintiff at an advantage he would not have enjoyed in proceedings in the Northern Territory, where the accident occurred and the cause of action arose.

114 It seems to me that this result would encourage forum shopping and would be altogether contrary to the reasoning in John Pfeiffer Pty Limited v Rogerson (supra): see in particular the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 521-522 [27] and 540-542 [88]-[96] and 544 [101]-[103].

115 The Second Reading Speech in 1979 to which Dr Morrison drew attention was, of course, repealed in 1997. Section 5 of that Act was directed only at "residents of the Territory" and was in a form significantly different from s 5 of the 1997 Act. Nor do I find the Second Reading Speech for the 2000 Act of assistance in the present context.

116 Mr Rewell submitted that Dr Morrison's reliance upon the reference in s 5(1)(b)(iii) to s 13 was unfounded. It was submitted that the reference to s 13 was simply a reference to "the amount" which is made relevant to s 5(1)(b)(iii) calculations. The relevant amount as provided for from time to time is presumably readily ascertainable by reference to available publications. I accept Mr Rewell's submission, and I do not consider the reference to s 13 advances Dr Morrison's principal submission.

117 As to s 41, Mr Rewell submitted that the section has not been altered since the Act was introduced in 1979 and is plainly intended to apply to circumstances where a person is injured and the party at fault was the holder of a third party insurance policy issued under the law as it existed before the statute's operation commenced. Reference was made to the decision in Boyd v Boynton & Ors 28 NTR 1 in support of this submission. In that case the plaintiff was injured in a motor vehicle accident in Katherine in the Northern Territory in July 1979, and a certificate evidenced that there was a third party policy in force in respect of the car. It was held that the plaintiff could pursue an action for damages against the holder of the current third party policy and was not restricted by the provisions of the 1979 Act in the damages recoverable provided negligence was proved. Forster CJ referred to s 41 as being "a transitional saving provision", and said this (at 4-5): "In order to make the transition from the old scheme to the new, it seems to me that the legislature intended that third party policies current on 1 July 1979, with respect to which premiums had already been paid, should continue in force until they expired, whereupon with the re-registration of the relevant vehicle, the compensation contribution would be made in lieu of a premium to renew the third party policy."

118 It was submitted that s 41 does not apply to the plaintiff's claim here, and I accept that submission.

119 Both counsel referred to the decision in Perrett v Robinson (1988) 169 CLR 172. The plaintiff sued the defendant for damages for personal injuries sustained in a motor vehicle accident that occurred in the Northern Territory. The plaintiff was a resident of the Northern Territory as defined under the 1979 Act (supra). He brought his action in Queensland in compliance with a requirement of the Board under s 41(3)(b) of the Motor Accidents (Compensation) Act (see [105] above). It was held at first instance no damages for impairment of earning capacity should be allowed because s 5 of the Act applied (see Perrett v Robinson (1987) SMVR 39). The appeal to the High Court was dismissed.

120 It is to be observed at the outset that the facts are distinguishable from the present case. The plaintiff was a Northern Territory resident who sued elsewhere. The court applied the principles in Breavington v Godleman (1988-1989) 169 CLR 41, in which a majority of the court held that the law of the Northern Territory as the lex loci delicti was applicable in an action brought in Victoria. Of course, Perrett was decided before Rogerson.

121 What is significant about Perrett is that it acknowledged the overriding effect of s 41(2) upon s 5(1) and s 5(2) in the circumstances provided for in s 41(2) (see the judgment of Brennan J at 180-181). Moreover, Perrett recognised the purpose of s 41 in providing a vehicle for reimbursing the Territory Insurance Office for benefits paid by it under the Act (see the judgment of Toohey J at 190).

122 Further, the Court recognised the transitional nature of s 41(2). Dawson J said as to this at 184-185: "Before turning to the actual wording of s 41 it may be helpful to observe that the aim of the section is apparently to ensure that the compensation scheme may be reimbursed out of insurance moneys payable in respect of injuries for which benefits are paid under the Act. Section 41(2) is transitional and preserves actions against persons holding current third party policies which expire after the commencement date of the Act. The policies referred to in s 41(2) are policies under the compulsory third party insurance scheme in the Northern Territory which was replaced by the no-fault scheme under the Act. Those policies would now have expired and, as a consequence, it would seem unlikely that s 41(2) has any longer any operative force."

123 Toohey J said (at 191): "While not in express terms a transitional provision, s 41(2) of the Act is of that character, for reasons explained by Forster CJ in Boyd v Boynton (1984) 28 NTR 1. When the Act came into force on 1 July 1979, Pt V of the Motor Vehicles Act was repealed. The compulsory third-party scheme existing under Pt V was replaced by the no-fault scheme under the Act. An amendment to the Motor Vehicles Act, also operative from 1 July 1979, provided for compensation contributions to be made by all persons seeking to register or re-register a motor vehicle."

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Cases Cited (9)