Sweeney v Thornton

Sweeney v Thornton - [2010] NSWSC 1030 - NSWSC 2010 case summary — Zoe

[16]

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.

[33]

(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.

[48]

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

[49]

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.

[52]

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.

[54]

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.

[64]

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.

[76]

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.

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