Procedure - Inferior courts - Tasmania - Local courts - Appeal and new trial - Appeal to Supreme Court - Generally - Nature of appeal.

Magistrates Court (Civil Division) Act 1992 (Tas), s28.

Tatnell v Housing Department of Tasmania [1963] Tas R 175, distinguished.

Torts - Negligence - Essentials of action for negligence - Duty of care - Special relationships and duties - Other cases - Driving test - Testing officer and bailees of car.

Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 259 ALR 616, applied.

Judgment Number: [2010] TASSC 13

1 This appeal concerns a driving test that went wrong. The respondents run a driving school. On 2 October 2008 one of their students went for a driving test. He wanted to get a provisional licence. The respondents provided him with a vehicle to drive during the test. It had dual controls. In the course of the test, the testing officer directed the driver to turn around and drive back where they had come from. The driver turned into a driveway and stopped the car extremely close to a brick pillar at the end of a brick fence. The testing officer expected the driver then to reverse the car back onto the street. The officer was looking to see whether anything was coming from his left when, no doubt to his surprise, the driver drove the car forward into the brick pillar. The driver did not get his provisional licence that day.

2 It cost the respondents $941.60 to get the vehicle repaired. They lost income of $774.00 while it was off the road. They sued the testing officer and his employer, the State of Tasmania, in the Magistrates Court. The claim was defended. The learner driver was not a party to the proceedings. There was a hearing before a magistrate. He concluded that the testing officer owed the respondents a duty of care, and that he had been negligent. He gave judgment in the sum of $1,715.60 plus costs. The State and the testing officer have appealed. They contend that the testing officer did not owe the respondents a duty of care and, alternatively, that he did not breach any such duty.

3 I should say a little at the outset about the status of the State of Tasmania as an appellant. When the respondents instituted the proceedings in the Magistrates Court, they described the defendants as "Paul Fenlon & DIER". That was handwritten. It could perhaps be interpreted as "Paul Fenlon c/- DIER", but for the purposes of this appeal it is accepted that the author of the document wrote "& DIER", not "c/- DIER". It is also accepted that "DIER" stands for "Department of Infrastructure, Energy and Resources", and that the respondents effectively joined the Crown in right of the State of Tasmania as a defendant. Paul Fenlon was the testing officer.

4 This appeal has been brought pursuant to the Magistrates Court (Civil Division) Act 1992, s28. The original s28 was repealed and replaced with effect from 11 December 2009. The learned magistrate gave judgment in this matter on 3 December 2009, but the notice of appeal was not filed until 17 December 2009, after the amendment had taken effect. The repealed s28 did not impose any express restriction on the right to appeal. However the new s28 limits rights of appeal in respect of minor civil claims. As the amount claimed by the respondents did not exceed $5,000, their claim was a minor civil claim, as defined in s3 of that Act. The amendment was made by the Justice and Related Legislation (Further Miscellaneous Amendments) Act 2009, s18. That amending Act contains no transitional provisions. The repeal of the old s28 therefore did not affect the unrestricted rights of appeal that the appellants had acquired at the time of the learned magistrate's judgment: Acts Interpretation Act 1931, s16(1)(c).

5 Counsel were unable to refer me to any reported case as to whether or not a testing officer owes a duty of care to prevent injury or damage being caused through the use of a motor vehicle during a driving test. It is well established that a learner driver owes a duty of care to his or her supervising passenger: Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510. It has been held in Canada that a driving instructor with the right to control a learner driver is liable for the negligence of the learner driver: Canada Safeway Ltd v Thornton Colvin and Colvin (1960) 24 DLR (2d) 345. However I was not referred to any cases in which a testing officer had been sued for negligence, and I have been unable to find any.

6 Counsel for the appellants submitted that the suggested duty of care was a novel one, and that in such a case it was necessary to undertake a close analysis of the facts relevant to the relationship between the parties. He relied on the judgment of Allsop P (with whose reasons Simpson J agreed) in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 259 ALR 616 at pars[100] - [105]. Counsel for the respondents submitted that her clients were bailees of the vehicle, and that both the driver and the testing officer were sub-bailees during the driving test, with the result that the testing officer owed the usual duty of care of a bailee or sub-bailee to take reasonable care of a chattel in his possession. In the alternative, she submitted that the testing officer owed her clients a duty of care even if he was not a sub-bailee.

7 In order to determine whether there was a sub-bailment to the testing officer, and whether the testing officer owed the respondents a consequent duty of care, it is appropriate to begin by considering the role of a testing officer. Driving tests are provided for in the Vehicle and Traffic (Driver Licensing and Vehicle Registration) Regulations 2000, reg13, which includes the following provisions:

"(1) The Registrar [of Motor Vehicles] may require an applicant for a driver licence to undergo a test or assessment, or provide other evidence to the Registrar's satisfaction, of the applicant's competence to drive motor vehicles of the class for which the licence is sought.

...

(3) The Registrar may require an applicant for a driver licence to submit to a test to satisfy the Registrar that the applicant has an adequate knowledge of the law governing road traffic."

8 A requirement that a learner driver be accompanied is imposed by reg8(7)(a) of those regulations, which provides as follows:

"(7) A person must not drive a motor vehicle (other than a motor cycle) on a public street as a learner driver (either under a driver licence issued as a learner licence or as authorised by this regulation under a driver licence of a lower class in the hierarchy of licence classes) unless -

(i) a person who holds a full licence (other than a restricted driver licence) of a class that would authorise the person to drive the vehicle, has held such a licence for at least 12 months, and is instructing the driver to drive; or

(ii) a driving assessment officer who is testing or assessing the driver for the purposes of these regulations ...".

9 A "driving assessment officer" does not have any contractual relationship with the driver being tested or assessed, nor any obligation to provide a vehicle for the purposes of any test or assessment.

10 Before the learned magistrate, there was no evidence as to whether the learner driver paid the respondents, or promised to pay them, for the use of the vehicle during the driving test. There was no evidence that the testing officer ever had possession of the keys to the vehicle. Ordinarily the driver would have the keys, but there was no evidence to that effect either. The driver needed to undertake a test if he was to get a provisional licence, and needed a vehicle in order to undertake the test. The testing officer had a duty to conduct a test if a candidate arrived at the appointed time with a roadworthy vehicle, but would not suffer any detriment or disadvantage if, for any reason, a particular candidate did not undergo a driving test at a particular time. There was no evidence that the testing officer was authorised to borrow vehicles for the purpose of conducting driving tests.

11 The learned authors of Halsbury's Laws of Australia, at par[40-5], list the four essential elements of a bailment as follows:

"(1) the delivery of the exclusive right of possession by the bailor;

(2) the voluntary assumption of possession by the bailee;

(3) an assumption of the responsibility by the bailee to keep the goods safe;

12 It was not submitted to the learned magistrate that the testing officer was a bailee or sub-bailee of the vehicle, and I do not believe that any such finding was open on the evidence. There was nothing to suggest that the testing officer, a public servant, had assumed any responsibility to keep the vehicle safe. In the absence of any evidence that the testing officer had been given the keys, there was no reason to conclude that he had an exclusive right of possession of the vehicle, or that he had voluntarily assumed possession. All of the evidence pointed to there having been a bailment or sub-bailment to the learner driver alone. I reject the submission that there was a bailment or sub-bailment by the respondents to the testing officer.

13 There have been recent developments in High Court cases concerning the approach to be adopted by a court in determining whether a duty of care exists in particular circumstances. The law as it now stands, and the approach that a judge should take in determining such a question, were summarised by Allsop P when he delivered the principal judgment in Caltex Refineries (Qld) Pty Ltd v Stavar, referred to above. I think I should follow and apply what was said in the New South Wales Court of Appeal in that case. Relevantly, his Honour said the following at pars[101] - [103]:

"[101] The High Court has rejected its previously enunciated general determinant of proximity, the two stage approach in Anns v Merton London Borough Council [1977] UKHL 4; [1978] AC 728 based on reasonably foreseeability, the expanded three stage approach in Caparo Industries Plc v Dickman [sic] [1990] UKHL 2; [1990] 2 AC 605 and any reformulation of the latter two, such as in Canada in Cooper v Hobart (2001) 206 DLR (4th) 193. See by way of example: Perre v Apand [(1999) [1999] HCA 36; 198 CLR 180] at 193-194 [9]- [10] per Gleeson CJ, at 210-212 [77]- [82], 212-213 [83], 216 [93] per McHugh J, at 300-302 [330]-[333] per Hayne J; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 at 288-289 [101] per Hayne J; Crimmins [v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1] at 97 [272] per Hayne J; Brodie v Singleton Shire Council [2001] HCA 29; [2001] 206 CLR 512] at 630-631 [316] per Hayne J; Sullivan v Moody [(2001) 207 CLR 562] at 577-580 [43]-[53] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ; Tame [v New South Wales [2002] HCA 35; (2002) 211 CLR 317] at 402 [250] per Hayne J; Vairy [v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422] at 444 [66] per Gummow J; Imbree v McNeilly [above] at 658 [40]-[41] per Gummow, Hayne and Kiefel JJ.

[102] This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the 'salient features' or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.

[103] These salient features include:

(c) the degree and nature of control able to be exercised by the defendant to avoid harm;

(d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

(e) the degree of reliance by the plaintiff upon the defendant;

(f) any assumption of responsibility by the defendant;

(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

(i) the nature of the activity undertaken by the defendant;

(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests;

(I have omitted from this list some factors that are of no apparent relevance to the present case.)

14 As to (i), it is significant that the role of a testing officer is not to supervise or instruct, but to assess or test. There was evidence that any intervention by a testing officer such as the application of the footbrake would automatically result in the candidate failing the test. I think it must follow that it is reasonable for a testing officer to be most reluctant or hesitant to intervene, in order to give a learner driver a fair go.

15 As to (m), I consider it significant that the conduct complained of is an omission, and that the suggested duty is a duty to do a positive act - to apply a footbrake in order to prevent a learner driver from causing damage to a vehicle borrowed from someone else. The common law has long been very reluctant to impose a duty on anyone to come to the rescue of another person or another person's property. See Fleming, The Law of Torts, 9th ed, at 164 - 166.

16 Some learner drivers are less competent and less experienced than others. Some are not fit to be given provisional licences. It is foreseeable that a learner driver, in the course of a driving test, could cause a collision resulting in death, serious injury, and/or serious damage to property. There may be times when such consequences can be avoided by the testing officer applying a footbrake in a vehicle with dual controls. Whilst the role of a testing officer can reasonably be regarded as justifying a candidate being given a lot of latitude, I think it must be reasonable to expect a testing officer to intervene by applying the footbrake in some situations. To take an extreme case, if a learner driver with a medical problem were to become unconscious during a driving test whilst at the wheel of a vehicle that was in motion, I think it would be reasonable to expect the testing officer to use the footbrake to stop the vehicle. Whether it is reasonable to expect a testing officer to intervene in a particular case must depend on the circumstances of that case.

17 In my view having regard to all the relevant circumstances, it is reasonable to impute to a testing officer, who has some capacity to control the vehicle being used in a driving test, a duty to exercise reasonable care for the safety of persons and property. In deciding whether that duty has been breached, it is necessary to consider the fact that the testing officer's primary duty is to assess the competence of the driver, not to instruct or control the driver and, in the light of that fact, to consider the reasonableness of a testing officer not intervening and exerting some control over the vehicle being used for the purposes of the test.

18 As I have concluded that the testing officer had such a duty of care, ground 1 must fail.

19 The repealed s28 said nothing as to the nature of the right of appeal that it conferred. Counsel for the appellants submitted that it did not confer a right of appeal in the strict sense, but that it conferred a right of appeal by way of rehearing "on the papers", with the result that a judge hearing such an appeal has the power, when appropriate, to substitute his or her own findings of fact for those of the magistrate appealed from. He relied on a number of single-judge decisions of this Court concerning legislation conferring rights of appeal from statutory tribunals: A v Law Society of Tasmania [2001] TASSC 55; (2001) 10 Tas R 152 at 154 - 158; Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139; (2003) 12 Tas R 337 at 339 - 341; Adamson v Pharmacy Board of Tasmania [2004] TASSC 32. Counsel for the respondents did not concede that point.

20 Since a right of appeal is purely statutory, the nature of that right has to be determined by reference to the words of the statute that conferred it: Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220 at 225; Cooper Constructions Pty Ltd v Brooker Holdings Pty Ltd [1961] Tas R 100 at 102; Tatnell v Housing Department of Tasmania [1963] Tas R 175 at 176.

"If any party to a proceeding before the Court is aggrieved by any determination, order, ruling or direction of the Court, that party may appeal to a judge of the Supreme Court who may make such orders as are appropriate in the circumstances."

22 The cases relied upon by counsel for the appellants all concerned different legislative provisions: the Legal Profession Act 1993, s79(1); the Medical Practitioners Registration Act 1996, ss61 and 62; and the Pharmacists Registration Act 2001, ss60 and 61. Each of those statutes gave much clearer indications than the section relevant to this case that Parliament intended to confer rights of appeal by way of rehearing, rather than rights of appeal in the strict sense. In Fernando, it was not disputed that the appeal was intended by Parliament to be by way of rehearing. In A v Law Society of Tasmania, Underwood J (as he then was) relied on Ex parte Australian Sporting Club Ltd; re Dash (1947) 47 SR(NSW) 283, which is authority for the proposition that, since an appeal from a statutory authority authorises a court to exercise original jurisdiction, the court is not restricted to examining the material that was before the authority appealed from.

23 In Tatnell v Housing Department of Tasmania, referred to above, Burbury CJ held that the Local Courts Act 1896, s123(1), conferred a right of appeal in the strict sense. At 176 - 177, his Honour said:

"Section 123(1) confers a right of appeal without expressly defining its ambit. It does not provide that the appeal is to be by way of rehearing and does not provide that the judge hearing the appeal may exercise any power which might have been exercised by the commissioner ...

In my opinion it follows that an appeal under s123(1) is an appeal stricto sensu and not an appeal by way of rehearing."

24 The nature of an appeal stricto sensu was explained by Lord Davey, delivering the judgment of the Privy Council, in Ponnamma v Arumogam [1905] AC 383 at 390 in the following terms:

"... their Lordships can safely say that it is not the practice of this Board to entertain any other appeal than one strictly so called, in which the question is whether the order of the Court from which the appeal is brought was right on the materials which that Court had before it. The Board may, however, think that the Court below had not sufficient materials for its judgment, or improperly omitted to receive or to require further evidence, or to try some issue, in which case it may remit the case for further hearing."

25 The wording of the Local Courts Act, s123(1), considered by Burbury CJ in Tatnell (above) as to the powers of a judge hearing an appeal under that section is consistent with such an appeal being an appeal in the strict sense:

"and the judge hearing such appeal may either order a new trial, on such terms as may seem fit, or may order judgment to be entered for either party, and may make such order in the premises and with respect to the costs of the appeal as may seem proper."

26 However the repealed s28 made no reference to the ordering of a new trial, and simply empowered a judge to "make such orders as are appropriate in the circumstances". Those words suggest that Parliament intended a judge hearing an appeal under that section to exercise a wider range of powers than those exercisable by a court that hears and determines an appeal stricto sensu. Further, the fact that Parliament did not confine s28 to final judgments, but instead conferred a right of appeal upon any party aggrieved by "any determination, order, ruling or direction of the Court" suggests that Parliament intended s28 to have a wide operation.

27 For these reasons, I think s28 should be interpreted not as conferring a right of appeal in the strict sense, but as conferring a right of appeal by way of rehearing "on the papers", whereby the judge hearing and determining the appeal may substitute his or her own findings of fact for those of the magistrate appealed from, to the extent that it is appropriate to do that without having seen and heard the witnesses. That approach is consistent with the approach that judges of this Court have taken in the past: Cook v Jennings [2007] TASSC 40; (2007) 48 MVR 185; Cuthbert v Roberts [2004] TASSC 63; (2004) 13 Tas R 83.

28 The only evidence before the learned magistrate as to the circumstances of the collision came from the testing officer. The learner driver did not give evidence. The testing officer's evidence was that the driver turned into a driveway on the right hand side of the road and stopped; that the vehicle stopped a couple of inches from the brick pillar; and that the vehicle had been approaching the crest of a hill before turning into the driveway. At one point, the testing officer said this:

"I believed he stopped or was going to actually back out of the driveway before we went any further. So I - well looked around the surroundings just in case any traffic was coming over the crest and making sure the car behind was clear. At this point the car surged forward and came in contact with the wall."

He went on to explain that what he called a wall was really a brick pillar. A little later he said that he did apply the brake, but that it was too late. He also said that, if he had thought the driver was going to continue to move forward, he would have stopped him. His evidence as to these points was not shaken by cross-examination.

29 It is clear from the learned magistrate's ex tempore reasons for judgment that he accepted the unshaken and uncontradicted evidence of the testing officer as to the circumstances of the collision. The basis upon which he made a finding of negligence appears from the following passage in the transcript of his reasons:

"This raises the question whether Mr Fenlon's conduct on this particular day, the 2nd of October, was in breach of that duty. I have concluded that it was. I have some sympathy with the position in which Mr Fenlon was placed. It's necessary, as I understand it, for an assessment that a learner driver be given reasonably free reign and that the assessor not interfere unless it becomes absolutely necessary for him to do so, as this step terminates the assessment. Here, however, Mr Cracknell had placed the vehicle in a position where it was endangered on two fronts. Firstly, either by hitting the post or secondly, by being hit from behind by a vehicle coming across the brow on the road behind its park place. This situation, in my view, required Mr Fenlon to be extra vigilant and to know exactly what Mr Cracknell intended to do. It was, in my view, an error on his part to assume that the vehicle was to be reversed. He should have, in my opinion, made absolutely sure in his own mind what Mr Cracknell's next step was to be and in the meantime should have had his own foot on the brake to prevent the vehicle contacting the post until Mr Cracknell engaged it in reverse so that it could then not make contact with the post.

I appreciate that this would have brought the test to an end, but the situation in which Mr Cracknell had placed the vehicle warranted this occurring. Mr Fenlon's failure to take the step did, in my view, in these circumstances, amount to negligence."

30 Hindsight is a wonderful thing. Obviously the collision could have been avoided if the testing officer had applied the footbrake and spoken to the driver about his intentions before releasing it. But the question I need to consider is not whether it was possible to avoid the collision. It is whether a reasonable testing officer in such a situation would have applied the footbrake in order to obviate the risk of a collision.

31 The Civil Liability Act 2002, ss11 and 12, apply when a court has to determine whether there has been a breach of a duty to take reasonable care. Those sections provide as follows:

"11 General principles

(1) A person does not breach a duty to take reasonable care unless -

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

(c) in the circumstances, a reasonable person in the position of the person would have taken precautions to avoid the risk.

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

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

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

(d) the potential net benefit of the activity that exposes others to the risk of harm.

(3) For the purpose of subsection (2)(c), the court is to consider the burden of taking precautions to avoid similar risks of harm for which the person may be responsible.

12 Other principles

In a proceeding relating to liability for breach of duty -

(a) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and

(b) the subsequent taking of action that (had the action been taken earlier)would have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute evidence of liability in connection with the risk."

32 A collision between the vehicle and the brick pillar was reasonably foreseeable. It was not likely that much damage would be caused as a result of such a collision. In fact the evidence suggested that the pillar was not damaged at all. The likelihood of such a collision was small in my view, given that the brick pillar was visible, the driver had stopped, and his logical next step was to reverse the vehicle. However I do not think the risk of such a collision was insignificant. The precautions that the testing officer could have taken involved no expense or difficulty, but would have caused the driver extreme inconvenience, in that the testing officer would have been obliged to fail him if he had thought it necessary to apply the footbrake. The testing officer had a conflicting responsibility, in that his duty of care also required him to keep a lookout for vehicles coming over the crest of the hill behind him. In the circumstances, I think it was reasonable for him to look for any such vehicle as a matter of priority. That is to say, it was reasonable for him to look in the direction where the car was likely to go. He had no reason to think it at all likely that the driver would suddenly drive the vehicle forwards, especially since it was on a collision course with the brick pillar.

33 Because of those circumstances, I think the learned magistrate erred in adopting too high a standard of care for the testing officer. In my view he acted reasonably, in the time available, in checking for traffic coming over the crest of the hill. I am not satisfied that a hypothetical reasonable testing officer in the same situation would have applied the footbrake or said anything in order to obviate the risk of a collision with the pillar.

34 For these reasons, I have decided to allow the appeal, set aside the judgment of the learned magistrate, and order that judgment be entered for the appellants (the defendants in the court below) for the dismissal of the claim.