Sweeney v Thornton

Civil Liability Act 2002 LEGISLATION CITED : Evidence Act 1995 Road Transport (Driver Licensing) Act 1998

Browne v Dunn (1893) 6 R 67 Chappel v Hart [1998] HCA 55; 195 CLR 232 Fox v Percy [2003] HCA 22; 214 CLR 118 CASES CITED : Hoyts Pty Ltd v Burns [2003] HCA 61; 201 ALR 470 Imbree v McNeilly [2008] HCA 40; 236 CLR 510 Jones v Dunkel (1959) 101 CLR 298 Luxton v Vines (1952) 85 CLR 352 Scalise v Bezzina [2003] NSWCA 362

PARTIES : Madeleine Louise Sweeney BHNF Norma Bell (Plaintiff) Andrew JohnThornton (Defendant)

COUNSEL : B Toomey QC/P Frame (Plaintiff) R Stitt QC/D Wilson/C Gleeson (Defendant)

SOLICITORS : Matthews Folbigg (Plaintiff) Hunt & Hunt (Defendant)

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2008/20362 MADELEINE LOUISE SWEENEY v ANDREW JOHN THORNTON

JUDGMENT 1 HER HONOUR: By statement of claim the plaintiff seeks an award of damages to compensate her for the serious injuries she suffered at around 1.15pm on 27 August 2005 when, as a learner driver driving under the defendant's supervision in his vehicle, she lost control on a bend of the Wallanbah Road between Tuncurry on the mid north coast of New South Wales and Firefly, a small inland town, and collided with a tree. 2 The plaintiff was aged 16 at the date of the accident. She left school in 2005 before completing year 11. She was employed as a shop assistant at the time of the accident. The defendant was the holder of an unrestricted driver's license issued by the RTA. He was aged 21 at the time of the accident.

3 As a result of the accident the plaintiff suffered significant traumatic brain injury, contusion of her right lung with right upper lobe collapse, fracture of the right femur, fractures of the pelvis, dislocation and fracture of the left knee, injuries to the neck and back, bruising, abrasions and lacerations. The plaintiff's case in summary

4 The plaintiff's primary case was that the defendant breached the duty of care he owed her as the supervising driver by failing to properly supervise, instruct and direct her as to the appropriate speed at which to negotiate the bend on the roadway having regard to the geometry of the road (in particular that the bend tightened in the curve radius) and the prevailing wet conditions. A variation of her case was that the defendant breached his duty of care in allowing her to drive, or to attempt to drive, through the bend at an unsafe speed in the prevailing circumstances and, generally, by failing to pay sufficient attention to the manner in which she drove the vehicle on approach to, and in the bend given her status as a leaner driver and his relative lack of knowledge of her driving experience and skill level. 5 The plaintiff's case was that 70 km per hour on entering the bend (a speed the experts assumed for the purposes of the preparation of the joint report, but which they were unable to accurately calculate without additional assumptions about vehicle control through the bend) was not a safe or reasonable speed for an inexperienced driver in wet conditions since it provided no contingency to safely accommodate the steering and speed adjustments a driver would likely have needed to employ to negotiate the bend in wet conditions. The failure on the defendant's part to advise the plaintiff to slow down on approach to the bend, and/or to be alert to the need to direct her that she needed to slow down before negotiating the bend, meant that in the time available after control was irretrievably lost, an accident was unavoidable.

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

7 The defendant's case was that the more probable cause of the accident was not excessive speed in the prevailing weather conditions. According to Mr Keramidas, the expert retained by the defendant, 70-75 km per hour was a reasonable speed for the plaintiff to approach or enter the bend in both wet and dry conditions. It was the defendant's case that as the plaintiff approached and entered the bend at an otherwise safe speed, she simply lost control of the vehicle, most likely as a result of her overreaction to irregularities in the road surface within the bend. This, it was submitted, was manifested by her overcorrecting by steering to the right, when the rear of the vehicle moved slightly out to the right, and then by her overcorrection to the left. This then ultimately caused the vehicle to "fishtail" in a widening arc across the roadway before it left the roadway altogether and collided with the tree. Since 70 km per hour was a safe and reasonable speed for the plaintiff to be travelling in all the circumstances it was the defendant's case that there was no need for the defendant to have intervened by guidance or direction on approach to the bend. 8 It was further submitted that even were a breach of duty established by the defendant's failure to intervene when the plaintiff was losing control of the vehicle, the interval of time between that point and when control of the vehicle was irretrievably lost and the collision was so narrow (an estimated four seconds as evidenced by the yaw marks on the road surface), that there was nothing the defendant could have done to avoid the collision and, further, that any intervention he might have attempted would have been unlikely to avert the collision. 9 It was submitted that on that basis alone the plaintiff had failed to establish that the defendant's breach was causative of her injuries and the defendant was entitled to a verdict.

10 The defendant also denied liability on the basis that the harm suffered by the plaintiff was as a result of the materialisation of an inherent risk as provided for in s 5I of the Civil Liability Act 2002 ("the Act"). Alternatively, if the defendant is found to have been negligent, the defendant submitted there should be an adjustment to the amount the plaintiff is awarded in damages by reason of her contributory negligence in the order of 100 per cent. 11 In the event that liability is established the parties have agreed damages (subject only to the issue of contributory negligence). The factual matrix 12 As will become clear from what follows, the evidence in this case leaves some of the critical facts underlying the issue of liability either unresolved, not adequately addressed, or not addressed at all. 13 The two contentious factual questions that fall to be resolved on the question of liability, and about which there is some evidence permitting, or possibly permitting, resolution, are: (a) what speed was the vehicle travelling when it entered and commenced its negotiation of the bend to the point where control of the vehicle was lost, and (b) at what point on, or in the bend, did the initial slip of the rear of the vehicle occur, and why? 14 These questions emerged out of the joint report of Mr Keramidas and Mr Johnston, both experts in crash analysis and reconstruction, in that they identified the possible causes of the plaintiff's loss of control of the vehicle as follows: "Mr Keramidas (was) of the opinion that the possible causes for the plaintiff's loss of control of the vehicle could include the following: (a) Excessive speed for the bend (assuming that there was braking between the bend and the commencement of the yaw marks). (b) Destabilisation of the vehicle sufficient to initiate loss of control as it traversed over the irregularities in the road surface. (c) Overreaction by the learner driver to a minor destabilisation of the vehicle as it traversed over the irregularities on the road surface. (d) Overreaction to the presence of the oncoming vehicle being driven by Ms Fancourt. (e) Inappropriate steering through the bend. (f) Inappropriate braking or acceleration through the bend. (g) Distraction from her driving task or physical impairment. (h) Failure of suspension or steering or tyres on the vehicle.

Mr Johnston (agreed) with all of the above but (added) the following: (i) Excessive speed for the bend for a learner driver on a wet pavement. (j) Inadequate direction from the supervisor on correct speed choice for this and previous bends." 15 As the case was conducted (d), (g) and (h) had no currency as possible explanations for the plaintiff's loss of control of the vehicle and (e) and (f) did not attract argument.

16 The fact that the primary cause for the loss of control remained a fact in dispute, and that there were other facts not adequately addressed by the evidence (or not addressed at all) such as may have assisted in the resolution of that issue, is due, in part, to the manner in which the parties conducted their respective cases.

17 In so far as the defendant's case is concerned, despite the fact that the plaintiff has no memory of the collision or the events which preceded it, and despite the fact that he gave a statement to police in which he detailed his observations of the plaintiff's manner of driving and her management of the vehicle at the critical time which supported his case that he did not breach his duty as supervisor, he did not give evidence. Where in most cases that would inevitably lead to a Jones v Dunkel (1959) 101 CLR 298 inference being open to be drawn in the plaintiff's favour on the question of liability, his statement, and that of his girlfriend, a passenger in the vehicle at the time of the collision, were tendered by the plaintiff without any application under s 136 of the Evidence Act 1995 limiting the use to which either or both of the statements might be put.

18 In Mr Toomey QC's final submissions, however, only parts of the defendant's statement were relied upon because of a successful attack on the defendant's honesty and reliability justifying a rejection of other parts of the statement as self serving or of no weight. It will be necessary to consider whether the attack on the defendant's credit deprives his account of weight, particularly as to where the initial slip of the vehicle occurred, and the speed at which the plaintiff was driving the vehicle at that time, and whether the Jones v Dunkel inference should be drawn in the plaintiff's favour in considering that question.

19 Mr Stitt submitted that the evidentiary status of the defendant's statement was not diminished by the fact that he did not give evidence, since his account of when and how control of the vehicle was lost, and the speed at which the plaintiff was travelling at that time, was consistent with the objective evidence (limited though it was), and consistent with the analysis of the dynamics of the accident from the perspective of Mr Keramidas, the expert called by the defence. The defendant's statement was also said to be inconsistent with the plaintiff's case which was based almost entirely on the evidence of Mrs Fancourt, an eyewitness who was said to be unreliable and/or unpersuasive, both as to where the vehicle was on the bend as it fishtailed out of control and the speed at which it was travelling at that time. Her evidence was also said to be contradicted by the fact that in Mr Keramidas' opinion, her version of where she first saw the vehicle out of control could not possibly be correct given the objective evidence analysed by him in the context of the immutable laws of physics governing the likely trajectory of the vehicle under slip. Furthermore, so it was submitted, the attack on the defendant's credibility as a means of undermining his account, or raising doubts about his level of alertness or focus at that time, was not made out.

20 Before turning to consider these issues in greater detail the following facts were either not in dispute at the close of the evidence, or were able to be derived from the unchallenged or uncontested evidence: (a) On Friday, 26 August 2005, between 7.30pm and 8.00pm the plaintiff was with the defendant and others at the Bellevue Hotel at Tuncurry.

(b) Some time before 2.00am the following morning the plaintiff drove the defendant's vehicle under his supervision to Firefly, a small town 35.5 kilometres inland from Tuncurry, along the Wallanbah Road and, after collecting his girlfriend, Ms Stevie-Lee Taylor, back to Tuncurry again along the Wallanbah Road. The travel time from Tuncurry to Firefly was approximately one hour. (This is referred to as the first driving episode.)

(c) Wallanbah Road is a typical secondary rural road which is relatively flat and open with an average width in the order of 6.2 to 6.5 metres, providing for a single lane of traffic in each direction. There was no centreline on the road's surface.

(d) The defendant told police the plaintiff was driving at this time within her capabilities. He does not elaborate on the basis upon which he made that assessment since he had no previous exposure to her as a learner driver. Ms Taylor told police that the defendant was in the front passenger seat and at times would give the plaintiff instructions to watch her speed and when to brake on approach to an intersection.

(e) Upon returning to Tuncurry, the plaintiff went to a flat occupied by her boyfriend, Mr Benny Gordon, where she stayed the night. The defendant and Ms Taylor went to the defendant's flat, also in Tuncurry, where they watched the sun rise. The sun rose at 6.13am. (f) There is no evidence as to whether the defendant slept and, if so, for how long before later that morning the plaintiff again drove the defendant's vehicle, again under his supervision, to Firefly along the Wallanbah Road in order for Ms Taylor to collect some clothes. (This is referred to as the second driving episode.) There is no evidence as to whether she drove on this occasion at the defendant's request or invitation or at her own suggestion. In addition, there is no evidence when they left Tuncurry or how long they stayed at Firefly such as might appoint with certainty the opportunity the defendant had for sleep, and from which the time he actually slept might be able to be inferred.

(g) After collecting Ms Taylor's clothes, the plaintiff then again drove the defendant's vehicle in an easterly direction under his supervision along the Wallanbah Road with the intention of returning to Tuncurry. (h) The speed limit on Wallanbah Road in the area of the accident was 100 km per hour. Being the holder of a learner driver's license the plaintiff was permitted by the Road Transport Drivers Licensing Regulations to drive at a maximum speed of 80 km per hour.

(i) At Dyers Crossing, at a point approximately 1.2 kilometers west of the township and 700 metres west of Abbotts Road, the vehicle left the roadway and collided with a tree.

(j) The section of road leading to the point where the accident occurred contained a left hand bend for vehicles travelling east necessitating a left steering input in order to negotiate the bend. The bend is 70 metres in length with a curve radius of 190 metres.

(k) The three variables involved in negotiating a bend are: (i) the amount of traction that is available; (ii) the rate of turn; and (iii) the speed at which the turn is attempted.

(l) The bend is comprised of three segments to facilitate a smooth transition from a straight stretch of roadway into the bend and out. They are: (i) a transition or entry spiral; (ii) a constant radius; and (iii) the transition or exit spiral designed.

(m) The "critical speed" for the subject bend (in wet and dry conditions) was between 124-137 km per hour, respectively, whilst the "comfort speed" for the bend was 73-75 km per hour. (n) "Critical speed" (a function of friction co-efficient, the radius of the bend and speed) is understood as the point at which for any given rate of turn a vehicle will inevitably lose traction, while "comfort speed" is understood as a speed at which a vehicle can safely traverse a bend so as to cause no discomfort or alarm to the occupants of the vehicle. They are concepts utilized by the authors of Austroads Rural Design Guide .

(o) Mr Keramidas considered 70-75 km per hour to be a reasonable speed at which a learner driver should be able to safely negotiate the bend, irrespective of whether the road surface was wet or dry, while Mr Johnston, the plaintiff's expert, regarded 70 km per hour as a reasonable upper limit in dry conditions, but an unreasonable speed for a learner driver to attempt to negotiate the bend in wet conditions. (p) Thirteen metres from the apex of the bend (ie 22 metres from the end of the bend and 78 metres from the commencement of the yaw marks), there was a slight irregularity on the surface of the road caused by the construction and/or maintenance of an under road drain designed to ensure that water does not run onto or collect on the road surface. The irregularity was neither significant nor hazardous and would likely have been experienced (if it were noticed at all) as a slight bump transmitting a vibration through the vehicle's rear suspension. A vehicle travelling between 70 to 80 km per hour would traverse the irregularity in 5/100 of a second. The irregularity was not severe enough for the surface of the tyre to leave the road surface but it had the potential to generate slip and, if that occurred, it would be experienced as the rear of the vehicle moving very slightly to the right. The maximum slip that could have been generated would occur close to where the exit spiral of the bend commenced, that is, where the curve radius of the bend flattens out. (q) Yaw marks, deposited on the road surface by the tyres of the vehicle, commenced 56 metres from the end of the bend (and 78 metres from the surface irregularity). The yaw marks had a radius of 63 metres and were laid when the vehicle was travelling at 69 km per hour. The vehicle at this time had a slip angle of 11 degrees to the left such that there was no realistic prospect for recovery of control of the vehicle by a learner driver. The yaw marks were the only objective evidence left by the vehicle as it traversed the bend before leaving the road and colliding with the tree.

(r) The yaw marks also indicate a left steering input although the position of the marks does not allow the conclusion to be drawn that the steering action was a continuation of the left steering action required to negotiate the bend. Logically, therefore, there must have been at least one additional right steering action between the two left steering inputs, although, as the experts agreed in the joint report, there could have been more. (s) At the time of the collision the road was damp or wet but it was not raining. In the 24 hours to 9am on 28 August 2005 there was 0.8 millimetres of rain that was recorded 5.2 km from the point of the collision. At another official meteorological site, also 5.2 km from the accident site, there was no rainfall within the same period. The evidence in the proceedings and the issues that are raised The plaintiff's evidence

21 Consistent with an unchallenged diagnosis of post-traumatic amnesia, the plaintiff gave evidence that she had no recollection of the collision or the hours or days preceding it. In particular, she said she had no memory of ever meeting the defendant or the circumstances in which she came to be driving his vehicle at the time of the collision or in the first episode 12 hours earlier. Other than the bare details of her previous driving experience under the supervision of her father and her then boyfriend's sister, her evidence was not probative of any the facts relevant to the issue of liability.

Ms Taylor's statement 22 The plaintiff tendered Ms Stevie-Lee Taylor's statement. She did not give evidence. Ms Taylor's statement was prepared by investigating police and dated 7 September 2005. Save for confirming that the plaintiff drove the defendant's vehicle to pick her up from her home at Firefly at 2am on the morning of 27 August 2005 and detailing, in general terms, the nature of the instruction the defendant gave the plaintiff as she drove the vehicle back to Tuncurry, Ms Taylor also had no recall of the driving sequence leading up to or immediately preceding the collision, or the circumstances in which the plaintiff came to be driving the vehicle at that time.

23 The plaintiff obtained her provisional learner's permit soon after her sixteenth birthday in February 2005. Between February 2005 and 27 August 2005 she had driven several different vehicles under the supervision of several licensed drivers: (i) Phillip Sweeney, the plaintiff's father. for between 10 and 16 hours. The vehicle she drove was a Jeep with a manual gearbox; (ii) Michelle Cassar, the plaintiff's former boyfriend' sister. The vehicle she drove was a 4WD with a manual gearbox; (iii) Wayne Gambrel, a friend of the plaintiff for an unknown duration. The vehicle was a Holden Commodore; (iv) The defendant, in his automatic Toyota Camry station wagon for about 3 hours within 12 hours of the accident.

24 In the course of the trial it was accepted that the plaintiff's total driving experience would not have exceeded 28 hours. From the end of May 2005 to the date of the accident she had five or six lessons driving under her father's supervision, principally around a newly constructed housing estate in the Foster/Tuncurry area. He last gave her instruction two to three weeks before the accident. He described her skill level as at a consistently low standard in that she drove slowly, rarely exceeding 60 km per hour even on the main road between the two towns; she would often fail to maintain the orientation of the vehicle to the centre of the carriageway; she would tend to apply the brake late on approach to a corner or a roundabout necessitating a reminder or a warning and she constantly looked down when changing gears. In his opinion she was not competent to drive on the stretch of open road between Tuncurry and Firely in wet conditions under speed. 25 The only evidence of the plaintiff's exposure to driving on the open road and/or driving on the open road in wet conditions was the two driving episodes under the defendant's supervision.

26 In contrast to both the plaintiff's evidence and Ms Taylor's statement the defendant provided an account to police of both occasions when the plaintiff was driving under his supervision, that is, as she drove the vehicle from Tuncurry to collect Ms Taylor and the return journey from Firefly in the early hours of the morning of 27 August, and then that afternoon when she again drove to Firefly, apparently to collect clothes for Ms Taylor, with the collision occurring during the return trip to Tuncurry. In particular he detailed the manner in which the plaintiff drove the vehicle under his supervision in the early hours of the morning and his assessment of her competence as a driver at that time, it being his first exposure to her as leaner driver. He said: "7. …When we first got in the car outside my flat in Tuncurry I kept a close eye on her to see if she knew what she was doing. She started the car without any problem and adjusted the rear view mirror without prompting. She put her seatbelt on and got ready to move off. At that stage she appeared to be competent to at least get the car moving without any real instruction.

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

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

10. …The trip back into Tuncurry was the same as before. There were only a few minor things I'd have to point out but apart from that Madeleine was driving alright. In my opinion she was always driving within her capabilities."

27 He also detailed his observations of her actions and reactions on approach to the left orientated curve on Wallanbah Road on the return trip from Firefly in the afternoon of 27 August, and his impression of the movement of the back of the vehicle to the right, and the plaintiff's reaction to that movement, after which control of the vehicle was progressively lost. In this regard he said in his statement: "14. Madeleine was driving; she appeared to be handling the car without any problems. I remember we came up to a left corner and Madeleine turned into it normally. As she came out of the corner I felt the back of the car move out very slightly to the right. It was about that time I became aware of a car coming in the opposite direction. It was on its correct side of the road and its position wasn't causing any problem, there was no real danger of us colliding with it at that point.

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

16. The movement in our car was getting more exaggerated and I felt that Madeleine was losing control. I remember feeling the car turning around and leaving the road. I could hear the sound of the car going off the road and I think I closed my eyes. I felt a large impact and then we stopped. I remember feeling as if I was upside down." (The bold portions of the defendant's statement were ultimately the only portions relied upon by the plaintiff. In essence, it was accepted that the loss of control was initiated by the rear of the vehicle moving out slightly to the right which the plaintiff responded to by overcorrection to the right followed by overcorrection to the left. The plaintiff did not accept that the slip occurred coming out of the bend or that she otherwise negotiated the bend "normally".)

28 Although the defendant was not asked by police to designate the point on the roadway where the plaintiff overcorrected to the right (or where control was ultimately lost) by reference to photographs or diagrams of any kind, it was the agreed position of the parties that his narrative account to police of the driving sequence on approach to the collision site is inconsistent with the evidence of the eyewitness, Mrs Fancourt, as to the position on the roadway where she saw the vehicle out of control and, by inference, where the slip must have occurred and why. 29 The defendant did not tell police (and neither did they apparently enquire of him) whether he gave the plaintiff any instruction concerning speed on approach to or on entering the bend in the wet conditions, or whether he gave her any instruction or direction at all in the course of the second driving episode. While he did mention the fact that the road was wet on the return journey from Firefly, he was not apparently asked whether this necessitated, in his judgment, any particular instruction or warning in relation to speed generally, or speed on approach to the bend in particular.

30 As I indicated earlier, I was not invited by Mr Toomey to limit the use of the defendant's statement under s 136 of the Evidence Act despite it being initially tendered for a non-hearsay purpose as part of the facts upon which the plaintiff's expert, Mr Johnston, was invited to offer his opinion. It was only in final submissions the plaintiff relied on part of statement.

31 Quite apart from the question whether I am prepared to draw the Jones v Dunkel inference adverse to the defendant, it is obviously necessary that I scrutinise his account to police with considerable care given that he was the supervisor of the plaintiff when she lost control of the vehicle (and from which she suffered very severe injuries) and that he was the focus of a police investigation at the time the statement was taken. It was submitted that in these circumstances he would or might be motivated to minimise his exposure to either a criminal charge or civil liability either because he had allowed the plaintiff to drive in the changed weather conditions and/or had failed to adequately supervise her by appropriate instruction in those circumstances, or because he knew he was sleep deprived and should not have allowed her to drive the car at all with his capacity to adequately supervise her being compromised by fatigue. This was a finding which the plaintiff submitted was open to me. 32 In mounting this challenge Mr Toomey placed considerable emphasis on the fact that the defendant lied to police (both directly and by omission) concerning his dealings with the plaintiff within 12 hours of the collision, in particular the reason the plaintiff was driving his car at all in the first driving episode. He also submitted that aspects of the defendant's narrative account to police have the appearance of being both selective and coloured to suit his own interests, such as he might have perceived them to be at the time the statement was prepared. While the defendant had no obligation to give evidence it was submitted that in his absence, and without being subject to cross-examination, I would discount the weight that would otherwise be given to his statement as a complete answer to the question of breach. It was submitted that after discounting entirely the contribution of the surface irregularity as a triggering cause of the collision, and after giving due weight to Mrs Fancourt's evidence, I would be satisfied that the plaintiff's case as particularised on liability has been made out. 33 Mr Stitt's primary submission was to emphasise the fact that the burden of proving a breach of the defendant's duty as supervisor rested on the plaintiff. He also emphasised that where the plaintiff tendered the defendant's statement in her case, and where the defendant could not have known or anticipated the detailed analysis that would be applied to his account by highly skilled experts in accident reconstruction, the evidentiary status of his statement was not diminished by the fact that he did not give evidence. It was conceded that the statement should be scrutinised with care, but unless other evidence contradicted the defendant's account it should be afforded due weight. In this context, the importance of Mrs Fancourt's evidence as the only eyewitness is highlighted since it is the only source of evidence capable of contradicting the defendant's account of where control was lost and the probable reasons why control was lost. The relevance of the circumstances in which the plaintiff drove the defendant's vehicle in the first driving episode

34 The relevance of the first driving episode in the early hours of 27 August 2005 to the question whether the defendant breached his duty of care as a supervisor 12 hours later was the subject of argument and an interlocutory ruling on admissibility (Sweeney v Thornton, Supreme Court of NSW, Fullerton J, 15 April 2010, unreported). 35 It was the plaintiff's case that sometime between midnight and 2am the defendant asked her to drive the vehicle to collect his girlfriend, Ms Taylor, from Firefly some 35 kilometres away because he "had a few drinks". The plaintiff had no memory of that fact but called evidence from Mr Gordon, her then boyfriend, as to the reason she drove the defendant's vehicle - an explanation she proffered after she returned to Tuncurry after the first driving episode. By contrast, the defendant told police that the plaintiff asked him to drive the vehicle to collect Ms Taylor from Firefly. 36 Mr Gordon's evidence (of what the plaintiff told him) was objected to as hearsay. Mr Stitt submitted that even if admissible as an exception to the exclusionary rule under s 65 of the Evidence Act because of the plaintiff's post-traumatic amnesia, the circumstances surrounding the first driving episode were irrelevant to any issue in the proceedings. 37 Mr Toomey submitted that by asking the plaintiff as a learner driver with whom he had no previous exposure as a driver to drive at night on an open country road because he was either positively affected by alcohol such that he could not drive, or concerned that he might be detected with more than the prescribed concentration of alcohol in his blood, the defendant displayed a tendency to act contrary to, or in disregard of the duty he owed her as a supervisor, and this was relevant to the question whether he acted in breach of that same duty 12 hours later. 38 Although it was common ground that there was no alcohol in the defendant's blood at the time of the collision, there were questions raised in the evidence on the voir dire into the admissibility of Mr Gordon's evidence about the defendant's state of concentration or alertness when the plaintiff again drove his car out to Firefly to obtain clothes for Ms Taylor in the second driving episode. These questions were raised because of Ms Taylor told police in her statement that after arriving at the defendant's flat at Tuncurry she and the defendant were awake until sunrise. Ms Taylor's statement was silent as to whether they slept at all thereafter as was the defendant's statement. 39 The defendant did not call any evidence on the voir dire. No submissions were advanced at that time by Mr Stitt that the evidence was incapable of supporting the inference that the defendant was in fact unslept, or underslept, and whether that may have impacted on his capacity to supervise the plaintiff in the second driving episode. I admitted the evidence of the first driving episode and the circumstances in which it occurred as tendency evidence. 40 The weight to be afforded the tendency evidence was the subject of further argument in final submissions. It arose at that time first in the context of how I should approach the fact that the defendant did not give evidence generally, and whether it was open to me to infer that his evidence would not have assisted his case on all issues in dispute, and secondly, by not having given evidence whether it was open to me to more readily draw the inference that he was likely to have been fatigued by lack of sleep and for that reason was not sufficiently focused or vigilant in discharging his duty as a supervisor. 41 The defendant submitted that having regard to all the evidence in the case the fact that he supervised her while under the effect of alcohol in the first driving episode did not provide a reliable foundation to find that he did not adequately supervise on the second driving episode, because I could not safely conclude that he had not slept or was fatigued or even that he might have been in that state. 42 Although the defendant did not seek to reargue the admission of the evidence of the first driving episode as tendency evidence, or challenge my ruling that the evidence had significant probative value, argument directed to the ultimate weight of the evidence gave that impression. 43 Accepting that the defendant stayed up to watch the sun rise, that allowed a maximum of five hours before the collision at 1.15pm during which time the defendant could have had some sleep. According to the agreed facts the five hours was arrived at on the basis that the time for the journey from Tuncurry to Firefly to the collision site - a distance of 47.5 kms - was approximately one and a half hours. Assuming there was no significant time spent at Firefly beyond what was necessary for Ms Taylor to collect her clothes before commencing the return journey, the defendant had the opportunity for a maximum of five hours sleep before leaving Tuncurry no later than 11.30am and no earlier than 10am when Mr Gordon left the plaintiff at his flat before going to work. 44 In the result, as I see it, there are two competing inferences. Either the defendant did not sleep between 6.13am and when he left Tuncurry for Firefly or he did. Realistically he had something between four and five hours available to him, allowing time for him to wake, perhaps to eat breakfast and prepare for the drive, including meeting up with the plaintiff. It was submitted that despite it being more likely that he did sleep for some part of the time out of sheer tiredness given that he had been awake all night, attempting to fix even a likely amount of sleep would be to adopt a process of reasoning by speculation which is impermissible (see Luxton v Vines (1952) 85 CLR 352). 45 It was further submitted that even were I to infer that the defendant had only slept for a few hours before the accident, to conclude that this would adversely effect performance of his duty as a supervisor, would be to draw an inference from an inference, and to find that it did in fact have this effect, and it was this that caused the plaintiff to lose control of the vehicle, is not only an impermissible line of reasoning but it is contradicted by other evidence. In this connection, Mr Stitt pointed to the defendant's account to police that he was aware of the speed the plaintiff was travelling and her driving performance as she entered the bend and, similarly, he was aware of the "slight slip to the right" as the vehicle exited the bend and her efforts to recover control in the seconds before the collision. The difficulty with that submission is that it relies upon the defendant's statement to support his credibility, when the doubts or questions that arise are as a result of what is contained in that statement in other respects.

46 Had I been satisfied that the defendant had either not slept at all before leaving Tuncurry or that he was fatigued because of little sleep, I may have found that was the reason why the plaintiff was driving the car at the time of the collision, so as to permit a further finding that it was not reasonable for the defendant to have allowed the plaintiff to drive to Firefly at all, or not to have allowed her to drive on the Wallanbah Road at the time of the accident because of the change in the driving conditions. 47 While the evidence does permit me to draw the inference that the defendant was at the very least underslept by having had little sleep after a long night of socialising, I am not satisfied that is the reason the plaintiff was driving in the second driving episode (although I strongly suspect that to be the case) or that he should not have permitted or invited her to drive at all. I am, however, satisfied that left unexplained or addressed by his not giving evidence, the inference can more safely be drawn that his capacity to adequately supervise the plaintiff on the return trip from Firefly was adversely impacted by a lack of sleep. While I am not satisfied that this was sufficient to constitute a breach of his duty as a supervisor per se, it is a factor I propose to take into consideration on that question. Similarly, for reasons to which I will now turn, his failure to give evidence allows me to give greater weight to the evidence of Mrs Fancourt since I am prepared to draw the inference that his evidence would not have advanced his case given the conflict between his account and hers concerning the critical phase of the passage of the vehicle through the bend immediately before the collision.

Mrs Fancourt's evidence 48 The plaintiff called Mrs Susan Fancourt as the only eyewitness to the collision. Her statement to police of 7 September 2005 was also tendered. 49 At the time of the collision she had been living at Firefly for a period of 18 months and had travelled the Wallanbah Road on a daily basis passing through the bend where the plaintiff lost control of the vehicle on each return journey. 50 Consistent with her statement, she gave evidence that on the afternoon of 27 August 2005 she was driving in a westerly direction towards Firefly when she observed the vehicle driven by the plaintiff travelling in an easterly direction towards her. She said that from the time she first saw the vehicle approaching her it was already fishtailing out of control - in the sense that the rear of the vehicle was at an angle to the edge of the road - a movement which was becoming more exaggerated as the vehicle approached. She described the manner in which the plaintiff was controlling the car as "steering madly". In the witness box she demonstrated an arcing movement, with her hands positioned to simulate the plaintiff's hands on the steering wheel as it was swung left to right. She was not asked, and did otherwise indicate, how many turns of the wheel (and associated manoeuvres of the rear of the vehicle to the left and the right) she witnessed as the car approached her and as it eventually passed her. She said that she slowed down as soon as she saw the vehicle and then pulled over to the side of the road to avoid what she feared might be a collision. In her statement she said the vehicle passed her out of control and that she turned around and saw it go into the dirt (on the side of the road), roll over and hit the tree.

51 She gave evidence that the vehicle was "about halfway" around the bend (which was a right hand bend from her perspective) when she observed it fishtailing out of control, as distinct from the vehicle being on or near the straight part of the road (which I take to mean either well short of the bend on approach to it or as the vehicle was exiting from the bend). She said in her statement that the vehicle looked to be travelling too fast to take the bend. She said that the particular bend was deceptive in that it appeared to be a gentle bend to the left (when travelling east - the direction the plaintiff was driving) but that once in the bend it is more difficult to negotiate than it appears. (I note that this is consistent with Mr Keramidas' observation that the geometry of the bed is such that the build up on the corner is quite severe such that there is an impression of needing to take "two bites" to negotiate the bend.) 52 She said that the speed of the vehicle remained fairly constant while she was watching it. She estimated the speed to be "about 80 km per hour" although she conceded in cross-examination that there was a lack of precision in that estimate. On the other hand, it was not suggested to her in cross-examination that the vehicle was travelling at any lesser speed than 80 km per hour or by any particular measure. It was conceded by Mr Johnston in cross-examination, and I accept, that accurately assessing the speed of an oncoming vehicle from a moving vehicle is a most difficult exercise. 53 Mrs Fancourt's statement to police was provided to the experts as part of the material they were invited to consider in offering their opinion as to the likely reason for the plaintiff's loss of control of the vehicle. Her statement did not, however, contain any reference to where on the roadway she first saw the vehicle out of control although it did refer to the car "fishtailing out of control". Her account that this occurred "about halfway around the bend" was volunteered for the first time in her evidence in chief. The joint report of the experts needs to be read in that light. In particular, their agreement that on the balance of probabilities the initial slip of the vehicle to the right (as described by the defendant in his statement to police) was likely to have occurred some short distance after the vehicle drove over the irregularities on the roadway such that the driving sequence which followed (namely the fishtailing) occurred between that point and the placement of the yaw marks, was the subject of marked qualification in Mr Johnston's evidence after he was invited to factor in Mrs Fancourt's evidence when offering his opinion as to the likely cause of the vehicle's loss of control. (I should note that whilst Mr Keramidas was always of the opinion that the irregularity in the road surface is likely to have generated the movement of the vehicle to the right, and to have been the precipitating cause for the vehicle's loss of control, Mr Johnston was always of the view that the irregularities may have generated slip but that speed, the wet conditions and the driver's inexperience were the more likely explanation for the initial loss of control and the resulting collision and not the minor irregularity in the road surface.) 54 Mrs Fancourt was not invited to mark the photographs or any of the various diagrams tendered in evidence to designate the position on the roadway where she first saw the vehicle with any greater accuracy or precision than her description of it being "halfway around the bend". (She did say in her statement that she was about 30 metres from the bend when she first saw the vehicle with the qualifier that she was unable to accurately estimate the distance.) Neither was she invited to mark on the diagrams or nominate by reference to the photographs where she pulled over such as might have given some indication of her position relative to where the yaw marks commenced, which may also have shed some light on where the vehicle was when she first saw it, and over what period of time she observed it out of control. 55 More importantly, her observations were not challenged or even tested in cross-examination despite it being the defendant's case that the triggering event for the vehicle's loss of control was not speed on entering the bend in the wet conditions but more likely the plaintiff's overreaction to the rear of the vehicle slipping slightly to the right when the wheels made contact with a slight irregularity in the road surface, and despite Mr Keramidas' evidence that it was literally impossible for Mrs Fancourt to have seen the vehicle fishtailing out of control halfway around the bend. 56 In light of the crystallisation of the differences of opinion between the experts after they gave their evidence and were cross-examined, and, importantly, after they were each invited to take into account Mrs Fancourt's evidence in offering their ultimate opinion as to the likely reason for the triggering event which led to control of the vehicle being lost - the defendant's failure to test or challenge Mrs Fancourt's account (or make application for her to be recalled to enable this to occur) was emphasised by the plaintiff in final submissions. Mr Toomey relied upon the rule in Browne v Dunn (1893) 6 R 67 to both lend support to Mrs Fancourt's unchallenged evidence and to undermine the weight of the defendant's unsworn account of where on the bend the plaintiff lost control of the vehicle. 57 The rule in Browne v Dunn is a discretionary rule of practice. Its content and operation was explained in Scalise v Bezzina [2003] NSWCA 362 where Mason P (Santow JA and Brownie AJA agreeing) said: "[95] ... The rule is rooted in considerations of fairness. It is a rule of practice 'necessary both to give the witness the opportunity to deal with [contradictory] evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inferences sought to be drawn' (Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 16 per Hunt J)." (See also James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18.) 58 The failure to cross-examine Mrs Fancourt, or make an application that she be recalled when the importance of her evidence became apparent is, in my view, a matter of significance.

59 Mr Stitt urged me to give preponderant weight to Mr Keramidas' opinion that Mrs Fancourt's evidence as to where on the bend control was lost (namely "at or on the apex of the bend", if that is what she is taken to mean by the car fishtailing "half way around the bend") must be wrong as the dynamics of the vehicle's forward (fishtailing) motion relative to the position of the yaw marks makes the plaintiff's continued movement through the bend impossible to achieve.

60 This aspect of Mr Keramidas' evidence is based primarily upon the position of the yaw marks as the only objective evidence of where the vehicle was when it was out of control, and his opinion as to the probable movement of the vehicle on the roadway as the plaintiff overcorrected first to the right and then to the left. His diagram (in what became Exhibit 9) of the likely path of the vehicle as it "broke away" from its regular passage along the right hand side of the roadway just east of the apex of the bend, had the vehicle leaving the road on the right side, well short of the actual point of collision with the tree on the left side and well short of the yaw marks. Because of the radius of the curve of the bend and the width of the road at the point of overcorrection he reasoned that there would only have been 0.5 of one second for the vehicle to correct (back) to the left and stay on the road before placing the yaw marks. In his view, this was well beyond the skill of any driver, much less the plaintiff as a driver with very limited experience. It was on this analysis that he considered Mrs Fancourt's description of where the vehicle was when she first saw it must be wrong. This analysis is then relied upon as supporting his opinion that the more likely scenario, taking into account the vehicle's rest position relative to the yaw marks, was the plaintiff's exaggerated steering response to traversing the irregular road surface at a point 22 metres short of the end of the bend and not excessive speed in the wet conditions resulting in a loss of control at any point earlier. 61 It was Mr Keramidas' evidence that other than the position within the bend where Mrs Fancourt claims to have first seen the vehicle out of control, her description of the vehicle fishtailing (assuming one overcorrection to the right and one to the left) and then leaving the right side of the roadway is entirely consistent with the physical evidence in the form of the yaw marks, the physical dynamics of the vehicle losing traction, and where the vehicle came to rest. 62 The defendant also submitted that the plaintiff's case based on Mrs Fancourt's evidence is inconsistent with the "apparent logic of events" (see Fox v Percy [2003] HCA 22; 214 CLR 118 at 129) in that it is illogical to proceed on the assumption that the plaintiff lost control half way around, or in the middle of the bend such as to cause the vehicle to fishtail and for the plaintiff to steer madly, but that she managed to nevertheless control the vehicle throughout the exit phase of the curve only leaving the road 22 metres after completing the bend. 63 After reconsidering Mrs Fancourt's evidence after applying Mr Keramidas' analysis of it, which necessitates a rejection of her observations of where the car was when she first saw it, was said to leave no room for the application of the rule in Browne v Dunn. 64 Whilst visually compelling, Mr Keramidas' analysis is nevertheless based on the untested assumption that the plaintiff overcorrected only once to the right (to counteract the slip of the rear of the vehicle to the right just short of the apex of the bend) and then once to the left beyond the apex of the bend being the description given by the plaintiff. This is distinct from her undertaking a less aggressive turning manoeuvre (or manoeuvres) that were still having turning input as the vehicle was moving forward through the bend, thereby enabling her to negotiate the bend (albeit with the vehicle in a fishtailing manoeuvre because of sideslip and the vehicle's forward motion) but such that control was never completely regained before the vehicle eventually "yawed" out of control once clear of the bend. This was said by the plaintiff to be consistent with the fact that although Mrs Fancourt saw the vehicle fishtailing in the bend, it was not associated with any physical evidence of sideslip on the road surface at that point. 65 As I see it, if Mrs Fancourt's evidence supports the reasonable interpretation that the vehicle was fishtailing out of control within the bend (some distance short of the irregularities in the road), such that the initial slip to the right is not fixed with topographical precision to the apex of the bend on the site diagram as Mr Keramidas has taken it to be, then Mr Keramidas' analysis mapped on Exhibit 9 does not carry the probative weight contended for by the defendant. Furthermore, Mr Keramidas effectively conceded that if the vehicle fishtailed down the road within the bend, within the last or transitional third of the bend as Mrs Fancourt described it, the diagram in Exhibit 9 is of no weight at all. 66 Mr Toomey submitted that there was no principled basis for regarding Mrs Fancourt as other than a reliable eyewitness. He also submitted that her observations are not inconsistent with the placement of the yaw marks and consistent with the "apparent logic of the events" (see Fox v Percy at 129). In particular, he submitted that the surface irregularities are so slight as not to provide a sufficient or reasonable explanation for the plaintiff to have lost control of the vehicle coming out of the bend. This, coupled with the doubts he submitted that I must be left with concerning the defendant's reliability generally in the circumstances and his failure to give evidence such as might have addressed these doubts, leaves the way clear for a finding, on the probabilities, that speed and weather conditions were the probable explanation for the loss of control on the bend, and that the slight irregularity in the road surface was not a triggering event but simply another factor that generated slip after control of the vehicle was lost or was being lost. 67 In these circumstances, subject to finding the defendant breached his duty of care as a supervisor, it was submitted she was entitled to a verdict and to recover damages.

Were the surface irregularities a precipitating cause? 68 After considering all the evidence, and giving due weight to Mrs Fancourt's observations, I am not satisfied that the surface irregularities of the road were a precipitating cause of the loss of control. Mr Keramidas conceded that he gave them consideration when offering his opinion only because he could not see that speed and the driving conditions sufficiently explained the original loss of traction. To describe them at all as surface irregularities has the capacity to overstate their significance when in reality they are a common feature of the construction of the open road, barely visible and would be traversed in 5/100 of a second by a vehicle travelling at moderate speed (see [20(p)]). 69 In addition, given their location relative to the straightening or flattening of the bend and the collision site, I am satisfied that Mrs Fancourt would simply not have had time, in what was agreed to be a four second interval of time from the irregularities to the yaw mark, to have made her detailed and sequential observations, inclusive of the time taken to manoeuvre her own vehicle off the road. Whilst I am not able to appoint with certainty where control was lost I am persuaded that it was within the bend, some distance back from the so-called irregularities, and not as the vehicle was exiting or emerging from the bend on approach to the straightening or flattening of the curve.

70 Having discounted the effect of the irregularities in the road surface as the initiating cause for the sideslip of the vehicle (and the associated loss of traction), the issue of speed and the plaintiff's reaction to a realisation that she was travelling too fast for the bend, is likely to be determinative of the question of liability.

71 This is highlighted by the following answer to a question posed for the experts and answered in the joint report: "Sideslip involves motion in a curved path, with the geometric relationship involving speed, radius of path and skid resistance. Speed is therefore an integral part of the equation and would inevitably have played some part. It is agreed that speed was not the sole or primary cause of the loss of traction, as other factors such as steering control (effecting radius of path) and the "irregularities" on the road surface (effecting skid resistance) would also have contributed to some extent." 72 Aside from Mrs Fancourt's evidence, there was no data available to appoint the speed of the vehicle on entry to the bend, or as it traversed through the bend, to the point where the plaintiff commenced to lose control of the vehicle. While Mrs Fancourt's assessment of the speed of the vehicle on its approach is necessarily qualified by her perspective, there was no challenge to that part of her statement that the vehicle looked to her to be "travelling too fast to take the bend". That said, the only available reference point to make an assessment of the plaintiff's speed on approach and through the bend to the point where control was lost was the fact that the vehicle was travelling at an average speed of 70 km per hour over the course of the yaw. While the experts agreed that if there were any acceleration or braking prior to that point then logically the vehicle would have been either travelling faster or slower as it came into and through the bend, they disagreed on the extent to which there was braking or acceleration and its likely effect on the issue of the speed at the critical time.

73 The defendant submitted that the only evidence as to the manner in which the vehicle entered the bend was in the defendant's statement to police where he said that the plaintiff "turned into the bend) normally". Given that the comfort speed for the bend was about 70 km per hour, this evidence was said to support the inference that the vehicle was travelling at or below 70 km per hour, and that it did not increase at any point up to and including where the defendant claims to have sighted the speedometer reading at 70 km per hour as the car commenced to yaw off the road. While that is an available inference, I do not find it compelling. Not only does it require me to accept the accuracy of the defendant's account to police (about which I have already expressed some doubts), it assumes that his subjective sense of comfort and ease are consistent with the abstract concept of comfort as a way of describing the relationship between speed and horizontal curvature utilised by those concerned with road safety and construction when I have no evidence to that effect.

74 Accordingly, there is a need to look elsewhere in the evidence for a reasoned assessment of the likely speed at which the vehicle was travelling at the critical time. While I am not compelled to accept Mrs Fancourt's estimate of 80 km per hour I do not disregard it entirely.

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

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

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

78 Mr Keramidas did however accept that the mere fact of sideslipping as control of the vehicle was lost in the bend would have the effect of "washing off" some speed prior to the placement of the yaw marks. The degree to which that would occur would depend upon whether the vehicle was under full acceleration, some acceleration or no acceleration (ie with the vehicle travelling at idle under momentum only) from that point to the placement of the yaw marks. 79 If the vehicle were under no acceleration the speed "washed off" was able to assessed with some precision by application of a given mathematical formula referable to the yaw and the angle of slip, such that at the point of the irregularities in the road the vehicle would have been travelling at 83 km per hour and, if at the apex of the bend a further 23 metres to the west, the vehicle would have been travelling at 88 km per hour. Mr Keramidas conceded that both speeds were too fast for an inexperienced driver to attempt to negotiate the bend in the wet and that intervention by the supervisor was required. If, on the other hand, the vehicle was under full acceleration, no speed would have been "washed off" despite the loss of traction as the vehicle sideslipped, and, if it were somewhere in between, something in the order of between 6 and 9 km per hour would have been "washed off". 80 Taking into account the increasing amplitude of the fishtail as described by Mrs Fancourt, I accept that there was some acceleration towards the yaw which would likely have been counteracted by the increasing angle of slip. I am not, however, able to reason to a view one way or the other as to whether speed would have been washed off such as to enable me to conclude that the vehicle was travelling through the bend at a speed greater than 70 km per hour, although it is possible this was the case.

81 The absence of any evidence of braking, coupled with the positive evidence of acceleration was said by the defendant to compel a finding, on the probabilities, that the vehicle was travelling at or below 70 km per hour into and through the bend prior to the placement of the yaw mark. The plaintiff's case is that in all the circumstances, particularly where the irregularities have been discounted as a cause of the loss of control, 70 km per hour and (logically any increment above that) is an inappropriate speed on approach to and through the bend in the given conditions. Further, that entering the curve at 70 km per hour was neither a safe or reasonable speed for an inexperienced driver in wet conditions since it provided no contingency for her to safely accommodate the steering and speed adjustments she would likely need to employ to safely negotiate the curve were a contingency to have presented where loss of control of the vehicle presented as a risk. 82 Mr Keramidas considered 70 km per hour was a reasonable and safe speed to approach the particular bend and transit through it safely and that while reinforcement from the supervisor might have been appropriate there was no obligation on him to say anything at all. He reasoned to that view on the basis that 70 km per hour allowed a 50 km per hour differential before the critical speed was reached - a differential which he considered significant and appropriate even for a learner driver in the wet conditions. He said that at 75 km per hour there would also be no need to alert the driver by guidance or direction but that at 80 km per hour, if the driver did not initiate their own deceleration, there would be the need to direct the driver to slow down. He went on to say that even if the irregularities on the road surface are discounted as a precipitating cause of the loss of control, since he does not regard speed as the cause, harsh and unnecessary acceleration through driver error is the only remaining explanation for the loss of traction in the rear tyres which would allow the vehicle to fishtail if the plaintiff oversteered in response.

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

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

85 Having found that the defendant breached his duty of care to the plaintiff the question of causation arises. Because of the findings I have made as to where and why control of the vehicle was probably lost (namely at or near the apex of the bend prior to the transitional or exit spiral), the defendant's submission that there was no breach of duty prior to the plaintiff overreacting to the slight slip of the vehicle is not available, neither is the related submission that the window for intervention was limited to a period of about four seconds such that there was nothing the defendant could have done in that time to have avoided the accident occurring.

86 In so far as the window for intervention is concerned since control was lost some distance back from the irregularities within the bend, then the time available to the defendant to have intervened increases exponentially from four seconds, by a measure of some seconds, but by a critical measure. Mr Keramidas was not asked to comment upon the steps that might have been taken were there a longer interval of time within which to act before the collision was inevitable.

87 By contrast, Mr Johnston gave evidence that as soon as the movement out from the rear of the vehicle on the bend was noticed intervention was required. He gave the following evidence: "Q. And how should he have intervened? A. Depends on exactly what was occurring. At that stage the vehicle was beginning to lose control. He had to deal with it. He had to understand he had a student there with certain - a novice driver with certain capabilities and yelling and screaming "brake" or "do something" was probably not going to achieve something. At that stage, when there was - before there was major loss of control, he had to say "Okay, just ease off, brake". There is a debate on the issue. I believe he should take control of the steering wheel as best he can, which prevents the aggressive and excessive movements. You can grab the wheel from the passenger seat. You can't control the vehicle, but you can prevent the over control of the vehicle. But it depends exactly what was happening. But he should have done whatever he could do.

Q. Can I just stop you there? The evidence is that when Mrs Fancourt saw the vehicle, it was out of control and the driver was doing these movements of the steering wheel (Indicated.) A. Right, which was clearly going to achieve nothing, so grabbing the wheel and pacifying the situation was the first step towards attempting to regain control."

88 In assessing Mr Johnston's evidence on causation, I am mindful of the observations on the question by the High Court in Chappel v Hart [1998] HCA 55; 195 CLR 232 at [32]: "Furthermore, a defendant is not causally liable, and therefore legally responsible, for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action. Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered. The enquiry as to what the plaintiff would have done if warned is necessarily hypothetical. But if the evidence suggests that the acts of omissions of the defendant would have made no difference to the plaintiff's course of action, the defendant has not caused the harm which the plaintiff has suffered."

89 Referring to evidence of what a plaintiff may otherwise have done if a warning or other action was taken, Justice Kirby in Hoyts Pty Ltd v Burns [2003] HCA 61; 201 ALR 470 at [54] stated: "Presumably this practice emerged once it was established that the relevant test of causation applicable in Australia was a subjective one. Nevertheless, the evidence of what a claimant would have done if a non-existent warning had been given by a hypothetical sign is so hypothetical, self serving and speculative as to deserve little (if any) weight, at least in most circumstances."

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

91 There is no evidence, even on the defendant's case, that he said or did anything. While on his case this is said to be explained by the narrowness of the window of opportunity, I am inclined to the view that his tiredness and related lack of focus is the probable (or a probable) explanation. This is again a finding I consider open to me where the defendant gave no evidence which may have otherwise satisfactorily addressed the issue. Contributory negligence

92 The defendant submitted that were I to find a causative breach established, it would be just and equitable to apply a reduction of 100 per cent on account of the plaintiff's contributory negligence in accordance with ss 5R and 5S of the Civil Liability Act: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated." 93 Mr Stitt submitted that in applying the general principles of contributory negligence and weighing the respective culpabilities of the parties, I should take as the starting point the standard of care owed by the plaintiff consistent with the fact that the law no longer recognises the learner driver's inexperience as a relevant factor in determining the standard of care owed by her and the applicable standard of care owed by her is that of an ordinary reasonable driver (see Imbree v McNeilly [2008] HCA 40; 236 CLR 510). Whilst that is doubtless true of the duty she owed other road users, I am not persuaded that is the standard of care required of her as an inexperienced learner driver under supervision viz the overriding duty the supervisor owed her. Her duty of care, in that connection, is referable to her obligation to drive within the statutory restraints imposed on her as a learner driver (not only as to speed, which I am not satisfied she exceeded in any event) and to accept instruction, guidance and direction from her supervisor at all times. There is nothing to indicate she drove in breach of that duty in any respect, in fact to the contrary, as reflected in the defendant's account and Ms Taylor's account of her driving in the first driving episode and nothing to indicate that the defendant gave her any instruction, guidance or direction on approach to or proximate to the collision which she refused or failed to follow. 94 Importantly, whilst I have found that the defendant's lack of sleep impacted adversely on his capacity to discharge his duty of care there is no evidence that the plaintiff was aware that he had not slept after she left him in Tuncurry at the conclusion of the first driving episode and before she commenced to drive his car later that morning. Were it otherwise, there would have been a reduction in her damages by reason of her contributory negligence. 95 In the result, I am not satisfied that the evidence establishes that the plaintiff contributed in any way to the harm she suffered by failing to take precautions against the risk of harm she was exposed to as a learner driver under the defendant's supervision.

Orders 96 Accordingly, the orders I make are as follows: 1. Verdict for the plaintiff. 2. Damages in accordance with the sum agreed by the parties and in accordance with my finding that there is to be no reduction by reason of the plaintiff's alleged contributory negligence. 3. The defendant is to pay the plaintiff's costs as assessed or agreed, subject to the agreement of the Court. 4. The parties have liberty to apply on three days' notice. **********

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