Davie v Manuel
[2022] WADC 91
•26 OCTOBER 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DAVIE -v- MANUEL [2022] WADC 91
CORAM: PETRUSA DCJ
HEARD: 9-10, 14-18, 21-22, 28-29 MARCH 2022
DELIVERED : 26 OCTOBER 2022
FILE NO/S: CIV 1675 of 2018
BETWEEN: CAROLINE DAVIE
Plaintiff
AND
DARRYL JUNE MANUEL
Defendant
Catchwords:
Negligence - Duty of care - Plaintiff driver involved in single vehicle accident - Whether defendant owner owed plaintiff duty of care - Causation - Factual causation - Whether non-working speedometer caused or materially contributed to accident - Turns on own facts
Legislation:
Civil Liability Act 2002 (WA)
Result:
The plaintiff's action is dismissed
Representation:
Counsel:
| Plaintiff | : | Mr G Droppert SC & Mr A G Cavenagh |
| Defendant | : | Mr D R Clyne |
Solicitors:
| Plaintiff | : | CLP Legal Pty Ltd |
| Defendant | : | Mills Oakley |
Case(s) referred to in decision(s):
Barnes v New Zealand Holdings Pty Ltd [2011] WADC 208
CGU Insurance Ltd v Coote (by his next friend Stephen Desmond Coote) [2018] WASCA 117
Nikolich v Webb [2020] WASCA 169
PETRUSA DCJ:
On 26 June 2015, Caroline Davie's working holiday in Australia came to an abrupt end when the car she was driving slid from a gravel road rolling over onto its roof. Ms Davie's two passengers walked away uninjured from the accident whilst she suffered a severe traumatic injury that has left her severely disabled. The car was owned by the defendant, Ms Manuel, who was operating a backpackers' hostel in the Arthur River area. Ms Davie had been staying at Ms Manuel's hostel with a view to taking up rural employment opportunities communicated to her by Ms Manuel. Ms Manuel made a car available to residents at the hostel so they could take up these employment opportunities.
Ms Davie claims that the defendant was under a duty at common law, or contractual duty to ensure that the motor vehicle she provided was roadworthy, free of defects that affected safety, and was reasonably safe for use on roads which were known to the defendant to be travelled, in order to attend work arranged by her.
Ms Davie claims that in breach of the duty the car provided did not have a working speedometer which caused or materially contributed to the accident that resulted in her traumatic injuries.
The defendant Ms Manuel denies that there was any contractual relationship between her and the plaintiff in respect of the motor vehicle but in any event denies that:
(a)the plaintiff has established the cause of the accident; and/or
(b)the accident was caused by any breach of duty by the defendant.
The parties have agreed quantum and it is only necessary for me to determine issues relating to liability.
The pleadings
The plaintiff pleads that the defendant's liability arises because:
1.At all material times the defendant was under a duty of care in respect of the control, management and maintenance of the vehicle so as not to expose the plaintiff, as a user of the vehicle, to a foreseeable risk of harm.
2.In the alternative pursuant to the implied terms of an oral contract, the defendant owed a duty of care to the plaintiff to:
(a)warn her of dangers due to the state of the vehicle; and/or
(b)not to expose the plaintiff to any unreasonable risk of injury or damage as a result of dangers caused by the state of the vehicle.
The plaintiff further pleads that in breach of the defendant's duty of care to her the accident was caused or contributed to by either the negligence of the defendant or by the defendant's breach of the contractual duty of care. The pleadings list 14 particulars of negligence. The same particulars were identified as the breaches of contract.
Despite the pleaded particulars of negligence the plaintiff accepts that the only matters that are ultimately in issue are the matters relating to the speedometer. In this regard the plaintiff pleaded that the defendant:
1.knew or ought to have known that the speedometer on the vehicle was not functioning;
2.knew or ought to have known that the vehicle was unroadworthy pursuant to s 243(2)(2c) of the Road Traffic (Vehicles) Regulations 2014 (WA);
3.supplied a vehicle which had a speedometer that was not working;
4.placed the safety of the plaintiff at risk in that her ability to assess her response to wet conditions on an unsealed road were adversely affected because she did not have a reliable indication of her actual speed; and
5.placed the safety of the plaintiff at risk in that the plaintiff was at a greater risk of travelling at an excessive speed on an unsealed road in wet conditions because of her inability to assess her speed.
The defendant ultimately accepted that she, as the owner of a car, owed the plaintiff a duty of care on the 'neighbour principles'[1] but otherwise disputed that:
1.the contractual relationship between the plaintiff and the defendant involved the provision of a car;
2.the speedometer on the car did not work;
3.the defendant knew or ought to have known that the speedometer was not working; and
4.the speedometer's condition had any role in the cause of the accident.
[1] ts 508; Defendant's closing submissions dated 28 March 2022 at par 7.
In this regard the factual issues in dispute are:
1.What was the nature of the contractual relationship between the plaintiff and the defendant?
2.What was the condition of the car? Did the speedometer work?
3.Did the defendant know the condition of the speedometer before the accident?
4.How did the accident happen?
5.Did the absence of a working speedometer cause or materially contribute to the accident?
Oral evidence concerning these factual matters came from:
1.the plaintiff, Caroline Davie;
2.Wei-Jung (aka Jamie) Huang - hostel guest and front seat passenger of the Toyota Corolla at the time of the accident;
3.Alicia Bonanno - hostel guest;
4.the defendant, Darryl Manuel;
5.Neil David Harris - mechanic; and
6.Colin Arnold Black - tyre fitter and business owner.
In addition, two statements from Oleg Lich were tendered by consent. Mr Lich was a guest at the hostel and a passenger in the car at the time of the accident. He provided a statement to police on 9 July 2015; 13 days after the accident. He provided a second statement to private investigators engaged by the plaintiff. This was dated 6 August 2015; forty‑one days after the accident. I note at this point that the evidence before me was that Mr Lich's English was 'really bad'.[2]
[2] ts 324.
Before considering the evidence, it is necessary to better understand the background.
Background
Caroline Davie is a Scottish citizen. She had a Bachelor of Laws awarded in 2010 and a Master of Science, Social Work awarded in 2012. Both degrees were from the University of Dunedin. She had worked for two years as a social worker before deciding to come to Australia on a working holiday.
She arrived in Australia in November of 2014. She initially lived and worked in Perth at a backpackers' hostel. In late May Ms Davie travelled to Arthur River with a view to undertaking work in rural Australia so she could fulfil the requirements necessary to extend her working visa for 12 months.
Darryl Manuel operated a backpacker hostel, known as Stonehaven Poodles and Backpackers, from her property near Arthur River. She had been a farmer in the area for 47 years. The accommodation included a number of caravans and a small cottage with three bedrooms. There was also a shared kitchen, laundry and ablution area. Ms Manuel lived approximately a quarter of a kilometre away from the hostel in her own home with her husband.
Those who came to stay at Stonehaven Poodles and Backpackers had opportunities to undertake farm work in the area. Local farmers, aware of Ms Manuel's business, would advise her of work they had on their property. This included information about the number of workers required and the duration of the work. Ms Manuel would relay this information to her guests who could then take up the work.
Some of the farms were located up to 100 km from Ms Manuel's property, so the backpackers needed transport to get to the farms. If a backpacker did not have their own vehicle, then Ms Manuel had a car she could lend to them. Generally, more than one person was required on a farm so the backpackers would travel together. They would share the driving and the costs of the petrol.
As at May 2015 Ms Manual in fact had two vehicles she lent to her guests. One of those vehicles was a 1992 Toyota Corolla hatchback. This car had a manual transmission.
In the four or five weeks after Ms Davie arrived at Stonehaven Poodles and Backpackers Ms Davie worked on various farms in the area including a property owned by Kim Saunders. She had also worked for a time at the home of a Mrs Clarke.
Ms Davie had used the Toyota Corolla to get to and from work. Consequently, Ms Davie had travelled in the Corolla many times before the day of the accident. She had been the driver on a number of these occasions.
On 19 June 2015 the Corolla was serviced by Neil Harris the proprietor of Harris Garage and Exhaust in Kojonup.
On the same day the car was taken to the Kojonup Tyre Service where Colin Black fitted two new tyres to the front of the car. The best two of the remaining tyres were put on the back.
On Friday, 26 June 2015 Ms Davie, Wei Huang (aka Jamie) and Oleg Lich set out to travel to Kim Saunders' farm to work for the day. They had each worked at Mr Saunders' property before. In fact, Mr Lich, Ms Davie and another backpacker, Alicia Bonanno, had worked there a couple of days earlier.
Mr Saunders' property was approximately 100 km from Stonehaven Poodles and Backpackers so they set out at approximately 6.45 am. They were due to start work at 8.00 am.
Ms Davie was the driver, Jamie Huang was sitting in the front passenger seat and Oleg Lich sat in the back passenger seat. Both Ms Davie and Ms Huang had their seat belts on. Mr Lich did not.
They stopped in Kojonup to get petrol before continuing their journey. The majority of the journey was on sealed roads. Eventually, they turned onto Foley Road which was a gravel road.
Whilst driving on the gravel road and shortly prior to the crash Mr Lich asked Ms Davie to move to the left of the road having noticed that she was driving in or near the centre. She complied. Shortly after this and whilst negotiating a right-hand sweeping bend the car began to slide and ultimately slid and/or rolled off the road on the opposite side, landing on its roof.
Ms Huang and Mr Lich were able to get out of the car, but Ms Davie was trapped inside. Ms Huang remained with her whilst Mr Lich ran to Mr Saunders' farm for help. Help eventually came and Ms Davie was airlifted to Perth.
Ms Davie was found to have, amongst other injuries fractures of the spine at the C4, C5 level that have resulted in incomplete tetraplegia. Ms Davie is, as a consequence, severely disabled.
What was the nature of the contractual relationship between the plaintiff and the defendant?
Ms Davie claims that she had a contractual arrangement with Ms Manuel that Ms Davie would pay a weekly amount of $120 and in return Ms Manuel would provide accommodation, work and a vehicle. Consequently, Ms Manuel had a contractual duty to provide a car that was roadworthy, free of defects that affected safety and was reasonably safe for use on the roads which it would need to drive on so Ms Davie could attend the work arranged by Ms Manuel.
Ms Manuel's position was that she was paid $120 per week for accommodation only. Whilst information about work opportunities were passed on to those staying at her accommodation and a vehicle made available, she was not contractually obliged to provide these to her guests.
Ms Manuel established the backpacker accommodation on her property as a way of helping to address the labour shortage in the area. Farmers needed workers to help them with their seasonal work and her backpacker hostel provided accommodation to those looking for work in rural areas.
There was accommodation for about 11 people. The accommodation included a small cottage with three bedrooms and some caravans. At the time Ms Manuel believed she had two caravans.
Ms Manuel said that backpackers would come and stay at her property. They paid her $120 a week. This was for the accommodation. In addition, farmers in the area would contact Ms Manuel if they had work available. She would pass this information on to those staying at her hostel. The information she passed on included the contact details of the farmer, the number of workers required, and the number of days work being offered. If those taking up the work needed transport Ms Manuel would lend them one of two cars she had available for that purpose.
Ms Manuel accepted that there was no other reason for people to come and stay at her accommodation. Further, it is clear that a significant number of those who did stay came because they wanted work.
This was Ms Davie's motivation. She had travelled to Australia on a working visa, the conditions of which meant that she could not work for one employer for more than six months. Further, the visa could be extended for a further year if Ms Davie worked for three months, in rural Australia.
Ms Davie wanted to extend her visa so she could find work as a social worker in Australia. She had already worked for six months at a backpacker hostel in Perth so needed to find work in rural Australia. It was through her work at the hostel that Ms Davie learned of Stonehaven Poodles and Backpackers.
Ms Davie's evidence was that she telephoned Ms Manuel. She described that telephone call this way:[3]
I explained that I had been passed on her number and that she may be able to offer me some work within the Arthur River area. She explained that she ran what she referred to as a working hostel. She said the arrangement was that if I came to be at her property and paid rent for that she would organise work on my behalf at farms within the surrounding areas and that she would provide a vehicle in order for me to make my way to the various farms I would be working on. … She had said I could come down more or less straight away, she said I could potentially do some work - what she described as work for accommodation for her in the first instance if there wasn't work available on surrounding farms.
[3] ts 168.
After this conversation Ms Davie says she travelled to Arthur River where she was collected and taken to Ms Manuel's property. There she discovered that she was to stay in one of the caravans. She was to share this with Ms Huang. The nature of the accommodation took her by surprise and the impression she gave at trial was that she considered it less than satisfactory.
In any event Ms Davie worked the day after she arrived. That is, she arrived one evening and worked for the first time the following day.
Ms Davie's evidence was that Ms Manuel would provide information about work either directly or by leaving information in a notebook left in a common area. The information included the contact details of the farmer, the number of workers required and the number of days of work available. In addition, Ms Davie said that Ms Manuel would nominate who was to do the work and which vehicle was to be used.
Ms Manuel was never asked about a notebook but did accept she would at times nominate who was to work and the vehicle to be used. She however did not pay the backpackers for the work or have any involvement in regards to wages albeit she was aware of the minimum hourly rate and would sometimes tell the backpackers what they might expect per hour.[4]
[4] ts 443 - ts 444.
It was common ground that Ms Manuel's permission was required before the car was taken. Further, that the car was only available to be driven to and from work and into town on weekends to buy groceries. There was never work on weekends. Those using the vehicle had to provide the petrol. Ms Manuel was responsible for all maintenance and upkeep on the vehicle.
It was also common ground that there were occasions when more than one farm required workers. Depending on location some people would be dropped off by those using the car to go to farms further afield. On other occasions the farmer may collect workers from Ms Manuel's property or very occasionally Ms Manuel would drop people at a farm.
Ms Davie and Ms Manuel were not the only witnesses to give evidence about the arrangements at Stonehaven Poodles and Backpackers.
Jamie Huang, a Taiwan national, was already at Stonehaven Poodles and Backpackers when Ms Davie arrived. She had been staying at a place in Darkan working in exchange for accommodation, whilst practicing her English. She had moved to stay at Ms Manuel's premises so that she could continue to practice her English. She was hoping to find work and had, at Ms Manuel's suggestion, put her resume in at the local abattoir. She subsequently did work on local farms including work at Mr Saunders' property. She worked at times with Ms Davie. She had a driver's license, but it was not for a manual car so although she travelled in the Toyota Corolla on numerous occasions, she did not drive it.
Alicia Bonanno and her travelling companion Oleg Lich came to stay at Ms Manuel's accommodation. They had been working in Albany but the work had run out. They subsequently heard about three day's work in the Arthur River area and had come to stay at Stonehaven Poodles and Backpackers to take up that work. They stayed on because Mr Lich was able to get work that was suitable for him. His English was not good so a job that did not require him to speak much was preferrable. Ms Bonanno and Mr Lich had their own car. However, there were times when they used the Toyota Corolla. This occurred mostly on occasions when they were both working but in different places. Ms Bonanno had therefore travelled in the Toyota Corolla both as a passenger and as the driver.
I am satisfied that people coming to Ms Manuel's property were guaranteed accommodation. Further, there is no suggestion that the accommodation provided by Ms Manuel was not adequate consideration for the payment of $120 per week.
Next, I am satisfied that those coming to Stonehaven Poodles and Backpackers had a reasonable expectation that work opportunities would be available to them. Further, that when those work opportunities arose a car would likely be available to allow them to travel to the places where the work was to be performed. However, it was not inevitably the case that they would need to travel to work in the car made available by Ms Manuel or that they would have an exclusive claim to any such car. This is because:
1.backpackers sometimes had their own transport;
2.farmers sometimes picked up their worker/s;
3.Ms Manuel would on occasion transport people to and from work; or
4.those using the Toyota Corolla would drop others off on the way to their work and/or pick them up on the way back.
It is likewise clear that Ms Manuel could not guarantee that work would be available at all or that any particular amount of work would be available. She may have had some confidence about when and how much work might be available given her knowledge of the local area and the farmers in that area. She had been a farmer in the area for 47 years. Notwithstanding this Ms Manuel could never have guaranteed work nor a particular amount of work albeit I expect she would have spoken in confident terms about these matters to prospective guests.
No witness, including Ms Davie, suggested that they had an expectation that they would get any particular work or amount of work. Further no witness suggested that they were told or believed they would have to use the car Ms Manuel had available to get to work.
There is no basis for concluding that any of Ms Manuel's paying guests, including Ms Davie, would have had an action for breach of contract:
1.if no work became available during the time, they were at Stonehaven Poodles and Backpackers;
2.if an insufficient amount of work was made available; or
3.if the car/s that Ms Manuel lent to guests was unavailable for whatever reason (it was in need of repair, was being used by others etc).
Clearly it was in Ms Manuel's best interest to communicate employment opportunities to her guests, to ensure those opportunities were equitably distributed and that any travel to those farms offering work was co-ordinated to optimise attendance at those work opportunities whilst minimising cost to the guests.
The availability of a car for use by her guests provided an incentive for people to use her hostel and made good business sense. However, Ms Manuel could not guarantee either the work or the car would always be available. In any event, there was not always a need to use a car provided by Ms Manuel to get to and from any work opportunities. Ms Huang for example was wholly reliant on others to get to and from work whilst Ms Bonanno and Mr Lich had their own vehicle if necessary.
There was also some very brief evidence from Sandra Pold who had been a guest at the hostel. She did not have a license at all but nonetheless undertook work in the area. She at times travelled in the Toyota Corolla albeit as a passenger.
Therefore I am not satisfied on the balance of probabilities that the contractual relationship between Ms Davie and Ms Manuel extended to more than the provision of accommodation for $120 per week.
Accordingly, it cannot be said that Ms Manuel owed, in relation to provision of the Toyota Corolla to Ms Davie, a duty of care pursuant to any contractual relationship. I find that Ms Manuel loaned the vehicle to Ms Davie.
The defendant accepts that in the circumstances of this case the owner of a motor vehicle owes a duty of care to any person who uses their car with their permission. Ms Manuel concedes that in those circumstances she was under a common law duty of care to Ms Davie to ensure that the vehicle she provided was fit for use.
I find that Ms Manuel was under a common law duty of care to ensure that the vehicle would be properly maintained such that it could be safely driven. In this case the only aspect of the car which it is suggested made it unsafe for use on the roads is that the speedometer was not working and had never worked.
What was the condition of the car? Did the speedometer work?
The car involved in this matter was 1992 Toyota Corolla. Ms Manuel had purchased the vehicle approximately four and a half months prior to this accident from a woman who had been staying at her property.[5]
[5] ts 445, ts 440.
The car was then 23 years old. It was variously described by witnesses who had driven it as being in 'reasonable condition', and 'wasn't the best one'. Oleg Lich who drove the vehicle often during the six to eight weeks that he was at the backpackers described it in his second statement in this way:[6]
The brakes worked alright, all the lights on the vehicle worked, it was a manual five speed vehicle and the gear box appeared to work okay and the clutch was okay. The steering was alright. The vehicle had wind up windows which were in poor condition as they were very difficult to wind up. The upholstery in the vehicle was serviceable. The one thing that did not work in the vehicle and that was never fixed in the entire time I was there was the speedometer.
[6] Exhibit 31, page 3.
Alicia Bonanno described the car like this:[7]
The car wasn't the best one. And we couldn't see how fast we were driving. We couldn't lock the doors and yeah. The light wasn't really good so sometimes I had to go really early for a job and then I find that because it was on the highway and yeah yeah all the kangaroos so I yeah I wasn't really secure in the car but yeah for me it was okay.
Okay. What did you say about you couldn't see how fast you were going? What-what did you mean by that? --- the - I don't know, the - the speedometer wasn't working. It was always on zero so you couldn't know how fast you were driving.
[7] ts 324 - ts 325.
Ms Davie did not speak meaningfully to the condition of the car from her own experience save that she said that the speedometer had not worked on any occasions when she drove the car.[8]
[8] ts 178, ts 352.
The car was serviced by the Harris Garage and Exhaust on 19 June 2015. This was only seven days before the accident. Neil Harris, mechanic and proprietor of the business performed the service.
The invoice for that service records that three litres of oil, an oil filter, an injection cleaner and a globe were replaced in the vehicle. Under a section entitled 'Recommendations' he recorded:[9]
Needs fuel, an air filter, a rear tyre, front shockies and needs rear brakes and exhaust.
[9] ts 477; Exhibit 41.
These were, Mr Harris said, matters that needed attention before the next service[10] but did not need to be done as a matter of urgency nor did they make the car unroadworthy.
[10] ts 482.
Part of Mr Harris' standard service was to take the car for a test drive. He did not specifically recall this test drive, but it was his routine practice. He travelled on the same piece of road 3 or 4 km out from his garage and 3 or 4 km back. He had chosen this route because the speed limit varied over the distance from 60 km per hour to 90 km per hour to 110 km per hour. The purpose of the test drive was to pick up any abnormalities and to ensure that the vehicle drove 'okay at the speeds and sometimes check for rough running, vibrations'.[11] It was Mr Harris' opinion that the Toyota Corolla was roadworthy.
[11] ts 479.
On the same day as this service, two new tyres were fitted to the car. They were fitted to the front of the car with the best of the remaining tyres placed on the back. The new tyres were put on the front because this was a front wheel drive vehicle.[12]
[12] ts 492, ts 495 and ts 497.
It is clear, that whilst the car was of some age, the only possibly relevant fault with it was that the speedometer did not work. This the plaintiff contends made it unroadworthy or unsafe.
The defendant does not accept that the speedometer did not work.
A vehicle inspection report prepared by Jimmy Wrightson and tendered by the plaintiff found that whilst the brakes, steering and suspension on the vehicle were serviceable and secure with no faults, the speedometer and sensors were not operational due to a broken cable.[13] Mr Wrightson's examination of the vehicle took place after the accident.
[13] See Exhibit 29.
A month or so after the accident Mr Harris saw the vehicle at a local wrecking yard. He took the opportunity to look at it and noticed that the odometer had not turned over from the time he had serviced the vehicle. When specifically asked if a broken odometer meant that the speedometer was also not working Mr Harris said:[14]
You can have one without the other. You can have a speedo still working and an odometer not work. I don't think you very often have the other way.
[14] ts 482.
He subsequently confirmed that a broken speedometer cable meant that neither the odometer nor the speedometer would work.[15]
[15] ts 482.
Mr Harris could not recall at the time of trial whether the speedometer was working when he took it for the test drive.[16] He accepted that it may not have been working and he had not noticed it because he was so familiar with the test route. He sometimes drove the route up to six times a day and knew 'it like the back of [his] hand'.[17]
[16] ts 485.
[17] ts 485.
I am satisfied, on the weight of the evidence that the speedometer was not working prior to the accident. Ms Bonanno, Mr Lich and Ms Davie all clearly say that they drove the vehicle on multiple occasions prior to this accident and that the speedometer was not working at any time. Ms Bonanno and Mr Lich are both independent witnesses.
I note for completeness that in Mr Lich's first statement to police no specific mention is made about whether the speedometer was working or not. He does however say, when describing the journey to the Saunders' farm on the day of the accident, 'I don't know what the speed was because I couldn't see the speedo'.[18] The implication of this statement is that had he been able to see the speedometer he would have known the speed. This evidence does not change my view, given what was said about Mr Lich's command of English and that the statement was written by others no doubt based on questions asked about specific matters.
[18] Exhibit 30, par 22.
Mr Harris' failure to notice that the speedometer was not working is explained by his familiarity with the test route and his evidence that the odometer reading had not changed since his service was uncontested. This is all consistent with the finding, after the accident, that the cable was broken.
Is a car without a working speedometer unroadworthy and/or unsafe
Ms Davie submits a working speedometer is necessary for a car to be roadworthy and/or safe. In this regard Ms Davie relies on reg 243 Road Traffic (Vehicles) Regulations 2014 which provides:
243.Motor vehicles and trailers to be properly maintained
…
(2)A motor vehicle must -
a.be in a condition that enables it to be driven safely; and
b.be in a condition that is unlikely to occasion unreasonable annoyance to any person or damage to any property; and
c.have all of its parts in serviceable condition.
…
(5)For this regulation, a vehicle is not in a condition that enables it to be driven or towed safely if driving or towing the vehicle would endanger the person driving or towing the vehicle, anyone else in or on the vehicle (or the combination of which it forms part) or other road users.
Contrary to reg 243(2)(c), all of the car's parts are not in serviceable condition if a speedometer is broken. Whilst I accept that this means the car would be in breach of the traffic regulation it does not necessarily follow that the car is unroadworthy or cannot be safely driven. One needs to have regard to reg 243(5).
The question is whether driving a car without a functioning speedometer endangers the driver, anyone else in or on the car, or other road users?
Neither counsel dealt with this issue in any substantive way. Counsel for the plaintiff simply relied on reg 243 arguing that mere breach of that regulation made the car unroadworthy and unsafe. Counsel for the defendant dismissed a speedometer as simply an instrument used to avoid a traffic infringement notice.
A speedometer does not affect the mechanical operation of a vehicle. It does not work like brakes or tyres whose effect on a vehicle's performance can be tested and quantified e.g. the braking distance can be determined and a tyre's degree of contact with the road surface measured.
A speedometer provides information to the driver who controls how the car is driven on a road in the many varied circumstances that may arise. Counsels' arguments failed to grapple with the complex task of driving a motor vehicle. It is a task that involves evaluating both consciously and unconsciously many diverse pieces of information.
A speedometer provides an objective means by which a driver can check their subjective assessment of a vehicle's speed. To this end it is a piece of information available to a driver when driving a car. There is no objective means by which its importance can be evaluated. In the circumstances of this case the evaluation of its relevance must be considered in the context of the cause of this accident and its role. I will therefore deal with this later when considering the circumstances of the accident.
I turn now to Ms Manuel's state of knowledge regarding the speedometer.
Did the defendant know the condition of the speedometer before the accident?
Ms Davie asserts that she had a conversation with Ms Manuel during which she specifically asked for the speedometer to be fixed. Ms Manuel disputes that any conversation of this kind occurred.
Ms Davie's evidence was that an attendant at a local petrol station identified a problem with the tyres on the car. This issue had been communicated to Ms Manuel's husband who inspected the car for himself. He confirmed that there were tyres that needed to be replaced. At his behest Ms Davie and the other backpacker named Margaret who had been with her, spoke to Ms Manuel. Their conversation took place in Ms Manuel's kitchen. Ms Davie's evidence about that conversation was:
And what did you say and what did Darryl say?‑‑‑So I relayed to Darryl the comments that had been made to us by the worker at the petrol station and the subsequent discussion of comments made by her husband Peter. And Darryl said that she would organise for us to take the car to the garage to get the tyres changed and to get a service carried out.
In that conversation - sorry, was that the full extent of the conversation you had with Darryl in the kitchen?‑‑‑It wasn't.
What else did you talk about?‑‑‑I asked if we were at the garage, would it be possible for them to fix the speedometer.
Why would you ask if you could have the speedometer fixed?‑‑‑Because it wasn't working and it was of concern.
Did Darryl say anything about that to you in that conversation in the kitchen?‑‑‑She did.
What did she say?‑‑‑She said it would cost more than the cost of the vehicle itself to get it fixed. And she said we could gauge our speeds by keeping in line with the other vehicles on the road. [ts 181][19]
…
Was there any discussion with Ms Manuel about when that would happen or whether you were to be involved in it?‑‑‑She suggested that we could take it to Kojonup on a day that we weren't working.
Okay. And did you agree to do that?‑‑‑I did.[20]
[19] ts 181.
[20] ts 182.
A few days later Ms Davie said that she took the car to Kojonup where it was first dropped at the tyre place. She subsequently collected it and took it to the garage for the service. Her recollection was that Margaret was with her. She did not have to convey any instructions to either the tyre fitter or the mechanic as they were both expecting the car.
Ms Manuel's evidence was that she had only owned the car for about four and a half months before the accident. She had driven the car. She was not aware that the speedometer was not working.
Ms Manuel denied that there had been any conversation with Ms Davie or anyone about the need for tyres or any maintenance on the car.[21] There had been no conversation about the tyres or the speedometer. Her evidence was that the car had been serviced as part of her regular service practice. Further, that she had checked the tyres and determined they needed to be replaced.
[21] ts 441, ts 447.
Ms Manuel's evidence-in-chief was also that she was 'pretty sure' she had taken the car in for the service but couldn't '100 percent remember'.[22] In cross-examination she could not recall Ms Davie being involved in taking the car to or from the service.[23] She could not reconcile Ms Davie's involvement in this, with her belief that the car had remained overnight at the tyre fitters or garage and that four tyres were fitted over two days.[24]
[22] ts 441.
[23] ts 448, ts 455.
[24] ts 448, ts 455.
The documentary records tendered at trial show that the service and the replacement of the tyres took place on the same day. Further, both Mr Harris and Mr Black recalled that the car was brought to their respective businesses by a young woman.[25]
[25] ts 478, ts 492.
Ms Manuel was clearly wrong about who took the car to Kojunup on 19 June 2015, how many tyres were fitted and how long it took. However, Ms Manuel's answers about this were not in my view the product of dishonesty but rather of poor memory.
It became clear in cross-examination that Ms Manuel had confused the replacement of tyres on this car with the replacement of tyres on another car. The Kojonup Tyre Service records show that two months (to the day) after the Corolla had two of its tyres replaced another car owned by Ms Manuel had two tyres replaced and then two further tyres replaced the next day.[26]
[26] See Exhibit 43.
The consequence of Ms Manuel's confusion is that her evidence regarding the circumstances that led to the service of this car and the fitting of the tyres is unreliable. I am therefore satisfied that the problem with the tyres was brought to Ms Manuel's attention as described by Ms Davie.
I have some reservations however in accepting that the conversation included any reference to the speedometer. My reservations relate principally to Ms Davie's evidence as to Ms Manuel's response. This is because it is inconsistent with Ms Manuel's other conduct. Ms Manuel acted quickly to address the problem with the tyres, arranged the service of her own accord and it is unlikely she could have known the price of having the speedometer fixed. Nor could she have anticipated that Mr Harris would not have identified the problem and included it in the recommendations.
Further, I find Ms Davie's evidence on other matters relating to the speedometer referred to in [134] - [136] below to be contrived. I am not satisfied that Ms Davie raised the issue of the speedometer with Ms Manuel.
I am however satisfied that Ms Manuel ought to have known that the speedometer was not working given her admissions that she had driven the car on a number of occasions[27] and the speedometer had not been working for at least the period of time that Oleg Lich and Alicia Bonanno had been at Ms Manuel's property. They had been at the property from sometime in April or May 2015.
[27] ts 451.
The accident
It is not contested that on the day of the accident there were three people in the car; the plaintiff Ms Davie was the driver of the car, Jamie Huang was in the front passenger seat and Oleg Lich was in the rear passenger seat. Both Ms Davie and Ms Huang had their seatbelts on. Mr Lich did not.
It is also not in dispute that they were due to start work at Kim Saunders' farm at 8.00 am. Kim Saunders' farm was approximately 100 km or one to one and a half hours' drive from Ms Manuel's property.
The journey from Ms Manuel's property to the Saunders' farm involved driving on sealed roads through Kojonup and on Albany Highway. The final part of the journey involved driving on gravel roads.
Ms Davie had driven the road to Mr Saunders' property before. In fact, only two days before the accident she had driven this car on this road.
The accident occurred whilst driving on the gravel road only 2 or 3 km from Mr Saunders' property. The nature and quality of the gravel road was described by Ms Huang in this way:[28]
For me, it's - there's a gravel road. You can even drive both side, that's fine. This way and the other way, both side, it's wide enough for both side to drive. And the tree, just on side, both side have tree. Though the - this road is quite smooth, not really lumpy. You don't really drive, like, up and down, lumpy. It's quite smooth. For me, it's like this - this - yeah.
[28] ts 267.
Ms Davie also described 'a slight slope at each side of the road'.[29]
[29] ts 188.
The nature and quality of the gravel road is also shown in a limited way in two of the three photographs in exhibit 23. The photographs, particularly the one numbered 71, shows the slight slope on each side of the road described by Ms Davie. There is also a low mound of sand that runs in a line along but off the edge of the roadway. It is consistent with the type of formation created when a gravel road is graded. This would appear to be the 'windrow' referred to by Mr Lich in his second statement: see [113] below.
The totality of the evidence regarding the accident and the prelude to it was brief and can be set out in full.
First, Ms Davie described the accident and the time immediately before it in evidence-in-chief in this exchange:[30]
[30] ts 187 - ts 189.
And then at some point you leave the sealed roads and travel on a gravel road. Is that correct?‑‑‑Yes.
Okay. Do you recall the state of the weather on this morning?‑‑‑I can recall that it was damp but not raining.
Did you have any conversations with either of your passengers about your driving or the journey at any point in that trip?‑‑‑I think I might have asked the others what speed I was doing on a couple of occasions throughout the journey.
Why did you do that?‑‑‑Because the speedo wasn't working so it was good to get feedback from the others as to what speed they thought I was doing.
When you were driving along the gravel road, was there any conversation about the manner of your driving?‑‑‑The only thing I recall is Oleg telling me to move over to the left of the road slightly. Well, to move over to the left of the road.
….
Does this conversation take place on the - with Oleg about your position on the road, is that when you're on the sealed road or on the gravel road?‑‑‑On the gravel road.
And where were you positioned on the roadway when Oleg said something to you about that?‑‑‑I was positioned in the centre.
Was there a lot of - was there any other traffic on the road at that time of the morning?‑‑‑There wasn't.
Okay. And why had you chosen to drive in the centre of the gravel road?‑‑‑I thought it was the best surface to be driving upon. There was a slight slope at each side of the road and I had a clear view of the road ahead.
So in response to that comment from Oleg, did you shift your position on the roadway at all?‑‑‑Very slightly.
Which way?‑‑‑I moved over to the left.
Okay?‑‑‑To the left.
All right. So how long after that did the accident happen?‑‑‑Not immediately but shortly.
And just describe in your own words - and I'm not going to interrupt you, but just describe in your own words what happened?‑‑‑As I recall it, the accident happened as I was driving through a sort of sweeping right-hand bend. It happened - it all happened very quickly. The car just suddenly started to - to get back and forth on the road. I done my best to try and get the car back under my control, but it was moving too fast in order for me to be able to regain control of the car and the car eventually flipped and rolled off the road. On the opposite side it landed.
And when you say on the opposite side, in your direction of travel towards the farm did it end up on the left-hand side of the road or the right-hand side of the road? ---I believe it would have been the right-hand side.
Okay. Did the car - when it became stationary after it had flipped over was it on its side, on its wheels or on its roof? --- It was on its roof.
When asked about her inability to regain control and her evidence that she was going 'too fast' Ms Davie said:[31]
When I say too fast, I don't mean I was deliberately driving too fast, but I was going at an okay speed taking into consideration I guess the age of the car and the type of road that I was on. But I think I obviously misjudged what speed I was going at because when the car started to slide, it was too fast for me to be able to regain the entire control of the car at that point. I think I obviously underestimated how fast I had been going. I was really just - I was guessing the speeds.
[31] ts 190.
This issue was taken up in cross-examination when this exchange occurred:[32]
And then all of a sudden you lost control --- It's - well, I describe the circumstances the other day. When I was driving through the bend the car started to - to slide.
It started to slide. And you couldn't correct it? --- Yes. It was going too fast in order for me to be able to correct.
You say it was going too fast to correct it, but why did it slide? ---Well, because I was obviously driving at a speed faster than I thought I was.
Well weren't you driving according to conditions? --- Yes, I was driving according to conditions. But I think the problem is, is that I obviously underestimated how fast I was going.
Well that's not obvious, is it. There could have been a number of reasons that the car came out of control? --- Well I'm not too sure what to say to that.
[32] ts 355.
Ms Huang described the time before and during the accident in this way:[33]
[33] ts 263 - ts 264.
All right. What can you say about the way Ms Davie was driving the car just in the time leading up to the accident?‑‑‑For me, it's okay. But maybe we are hurry to go to work so we might be fast. That's - but I'm looking on my phone so is - is - I still feel okay.
All right. Right. Was anything said about hurrying to go to work?‑‑‑Anything - because when the timer, we are nearly at - nearly - make sure we are nearly on time so is a bit - how - how you say? About - it's not hurry, just like we get there on time ‑ ‑ ‑
Okay?‑‑‑ ‑ ‑ ‑ I - I think. Yeah.
Did either you or Oleg say anything about the way Caroline was driving?‑‑‑From where - when she drives, it might a little bit on the road near the - the other side. So I think Oleg or we will tell her maybe come back a little bit on the left, on the normal left side to drive.
Okay?‑‑‑That's it.
When that was said, did Caroline change the position that she was driving on the road or did she keep driving ‑ ‑ ‑?‑‑‑Yeah, she moved back a little bit on the normal way where we drive.
And that of course is said before the accident happens?‑‑‑Yeah, but that is on the straight - is happened on the - when we ask her to drive back is on the straight - straight before our turn, before field [sic] after - when we have to turn the big, like, bend or something.
Right?‑‑‑That is before.
All right. So if I - if I heard this correctly, that comment was made and she shifted the car when it was driving along a straight section of the road?‑‑‑Yes.
All right. After that section, what did - what was the road - what was the direction of the road?‑‑‑But when the accident happened, it's kind of the big bend or turn right. Then I lose control. But I think that is after we tell her that, about - after a few minutes or something.
All right. What do you remember about what the car started to do as it went through the big bend to the right? --- It just, like, lose it and just turn over and upside down on the side, the other side of the road.
All right. Do you remember how many times the car rolled? --- I can't really remember but it's upside down, so at least once.
Mr Lich was not called to give evidence but his two statements were tendered by consent. In his first statement given to police on 9 July 2015 he described the accident and the period leading up to it in this way:[34]
[34] Exhibit 30, pars 15 - 29.
During the drive I was playing with my phone most of the time. Sometimes I would look out the window.
One time I look up I noticed that Caroline was driving on the middle of the gravel road and sometimes she would be on the right side.
I felt a little bit uncomfortable and said to her 'Caroline can you drive little bit to the left side please, because if other car come from the other way we fucked'.
After that she drive on the left side.
I put my phone away in my jacket and the time on the phone was about 7:50 am.
From that time I was watching the road.
I felt uncomfortable with the speed that Caroline was driving. It felt too fast for this gravel road.
I don't know what the speed was because I can't see the speedo.
In my experience it felt like she was driving about 80 kilometres an hour.
We came up to a right bend and I felt the car starting to slide.
The car slide to the right and then to the left and to the right.
I wasn't wearing a seatbelt so my reaction was I moved to the right passenger seat and hold onto something because the car was sliding left side first.
The car came up to the right side of the road and it fall in a hole.
When the car fell in the hole it flipped the car onto the roof.
I was holding onto the roof of the car from inside when this happened.
In his second statement provided to a private investigator engaged by the plaintiff Mr Lich described the event from the point after they turn onto Foley Road this way:[35]
Caroline was driving normally but maybe a little fast on the gravel road.
She was in control however and I was comfortable and relaxed but at one point, I did ask her not to drive in the middle of the gravel road and more to the left.
When I asked her she did so.
I recall we were nearly at the property where we had to work and were a few kilometres away from it.
Caroline approached a sweeping right-hand bend that was located a distance of about 2 ‑ 3 kilometres from the farm where we were heading to.
The car started to slide sideways and as it got to the far side of the road it hit a windrow at the side of the road and then rolled over.
At the time, I would have estimated our speed to have been around about 70 kilometres per hour.
The vehicle only rolled once and landed on its roof.
[35] Exhibit 31, page 5 - 6.
There is alot that I do not know about the circumstances surrounding this accident. I do not know:
1.the condition of the gravel road, save what is in [104] ‑ [106] above accepting Ms Davie's evidence that it was 'damp but not raining';
2.whether the condition of the gravel road had changed over that distance and particularly whether it was any different at the point that the car began to slide (e.g. did it become muddy);
3.the camber of the road near to or at the site of the accident;
4.the distance Ms Davie had driven on gravel prior to the accident;
5.the configuration/layout of the road leading up to the right-hand sweeping bend;
6.the visibility both in terms of the amount of light and the distance;
7.the nature of the right-hand sweeping bend - the degree of the angle on it etc;
8.the point on the right-hand sweeping bend that the car began to slide i.e at the very beginning, halfway along its length or at the end;
9.the distance that the car travelled from the point that it began to slide to when it came to rest; and
10.whether there were any markings on the road that show the path the car travelled.
There was no expert evidence about the accident or its cause. There was no expert evidence about whether the speed of the car could be determined at the time it began to slide or the minimum speed of the car for it to slide given the nature of the bend and the road surface. There was no expert evidence about what would have been a safe speed to negotiate this right-hand sweeping bend.
The only evidence I have about Ms Davie's speed around the time of the accident is from Mr Lich. Whilst his statements were tendered by consent that does not determine the weight I give to this evidence. In circumstances where Mr Lich was a rear seat passenger, who was largely distracted by his phone and whose driving experience is entirely unknown it is difficult to place any weight on his evidence about the speed of the car.
The evidence I do have suggests that at some point whilst negotiating a right-hand sweeping bend the car began to slide. Mr Lich's evidence was the car first slid to the right. As a matter of commonsense this is consistent with a car moving too quickly around the right-handed bend. Whether the speed was too great because of the nature of the bend, the nature of the road surface, a sudden change in the road surface, the angle of the car's approach to the bend, or some combination of these, is not clear.
I accept the evidence that the car then moved to the left and back to the right albeit the left side of the car was at the leading edge.
Ms Davie did not describe what she did once the car began to slide save that she says she did her best. I cannot find whether her actions influenced these changes in direction and if they did, which changes and the extent to which any actions taken by Ms Davie affected what happened.
The evidence that the car slid as it negotiated a right-hand sweeping bend on a gravel road compels a conclusion that the car was going too fast to negotiate the bend. In the absence of any evidence of any other cause, like a blown tyre, a muddy patch on the road or some distraction, it is more likely than not that Ms Davie was driving too fast to maintain control of the car on this bend.
The more critical issue is whether the lack of a working speedometer caused or materially contributed to the car being driven at a speed that was too fast for the conditions (whatever they were).
Legal principles - Duty of care
Although the Civil Liability Act 2002 (WA) is not pleaded it applies to this action.[36]
[36] As accepted by the plaintiff in her written outline of opening submissions dated 10 February 2022, pars 52 ‑ 77.
Section 5B(1) of the Civil Liability Act provides:
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
As explained in CGU Insurance Ltd v Coote (by his next friend Stephen Desmond Coote) [2018] WASCA 117 [77] - [78]:
77Section 5B has been construed as setting out preconditions for establishing a breach of duty, rather than the existence of a duty. We agree with the analysis of Buss JA in Smith for reaching that conclusion.
78The questions posed by s 5B(1), and the considerations referred to in s 5B(2), are to be answered and assessed prospectively and not with the wisdom of hindsight. In particular, the precautions which a reasonable person would have taken are to be assessed before the accident began. The court must look forward to identify what a reasonable person in Frontline's position would have done, not backward to identify what would have avoided the injury to Mr Coote.
(footnotes omitted)
In this case the defendant accepts there was a duty of care owed to the plaintiff. It was a duty to take reasonable care to prevent foreseeable risk of harm to others including the plaintiff. What is in dispute is the scope or content of the duty of care.[37]
[37] Defendant's written closing submissions at par 8.
In identifying the scope, or the content, of the duty of care and what would be a reasonable response to the risk of harm, it is first necessary to identify the risk of harm. The correct approach in determining the scope or content of the duty of care has been explained by the Court of Appeal in Nikolich v Webb [2020] WASCA 169 [66], [67], [69]:
66As Gummow J explained in Roads and Traffic Authority of New South Wales v Dederer:
It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be.
67Leeming JA has recently emphasised the practical importance of identifying the relevant risk of harm. As his Honour stated (Payne and White JJA agreeing):
The Civil Liability Act makes the specification of the risk of harm important in every case. That applies at the threshold in every case in which a failure to take reasonable care is alleged, by reason of the three mandatory matters in s 5B(1) that a plaintiff must establish, and the four matters in s 5B(2) which a court is required to consider, all of which are addressed to a 'risk of harm' … The importance of identifying the risk of harm has been stressed in [numerous decisions in the New South Wales Court of Appeal between 2012 and 2018].
This is one of the signal changes effected by the Civil Liability Act. While the correct identification of the risk of harm was stated to be essential to identify a reasonable response in decisions to which the statute did not apply (for example, Roads and Traffic Authority of NSW v Dederer), the statute crystallises the position. (original emphasis) (citations omitted)
…
69In identifying the risk of harm:
1.The formulation of risk of harm should identify the true source of potential injury and the general causal mechanism of the injury sustained.
2.The risk must be defined taking into account the particular harm that materialised and the circumstances in which that harm occurred.
3.What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning; for example, because:
(a)it obscures the true source of potential injury;
(b)it too narrowly focusses on the particular hazard which caused the injury; or
(c)it fails to capture part of the plaintiff's case.
(footnotes omitted)
In this case the risk of harm identified by the plaintiff is the risk of injury from driving a car on gravel roads in circumstances where the vehicle did not provide a means by which the driver could know its speed with a degree of precision.
The question of causation must then be assessed in accordance with s 5C Civil Liability Act which requires the determination of fault of the tortfeasor to be assessed by reference to two factors, namely factual causation and the scope of liability.
In this regard it is convenient to set out the following passage from Davis DCJ in Barnes v New Zealand Holdings Pty Ltd [2011] WADC 208 [157] - [161] which I respectfully adopt:
157As to causation under the Civil Liability Act, s 5C provides relevantly that:
(1) A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements -
(a)that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
(2)In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) -
(a)whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b)whether and why the harm should be left to lie where it fell.
….
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
158Proof of causation under the Civil Liability Act s 5C involves two inquiries, the first relating to factual causation and the second relating to the scope of liability. As explained in Adeels Palace Pty Ltd v Bou Najem [43] ‑ [45] and [54] - [55] by French CJ, Gummow, Hayne, Heydon and Crennan JJ, dividing the issue of causation in this way means that the statutory approach to causation is different from the common law's approach.
159Under the Civil Liability Act s 5C(1)(a) the test for factual causation is the 'but for' test. It must be shown that it is more probable than not that, but for the negligence of the defendant, the plaintiff's injury or harm would not have occurred: Adeels Palace Pty Ltd v Bou Najem [45], [53] - [57]; Department of Housing and Works v Smith (No 2) [92] ‑ [94] (Buss JA).
160Section 5C(2) makes provision for determining in an appropriate case, in accordance with 'established principles', whether a fault that cannot be established as a 'necessary condition' of the occurrence of harm should be taken to establish factual causation. As explained in Adeels Palace Pty Ltd v Bou Najem [54] (in discussing the NSW provision s 5D(2)):
… All that is plain is that it is a case where negligence cannot be established as a necessary condition of the harm; the 'but for' test of causation is not met. In such a case the court is commanded 'to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party'. But beyond the statement that this is to be done 'in accordance with established principles', the provision offers no further guidance about how the task is to be performed. Whether, or when, s 5D(2) is engaged must depend, then, upon whether and to what extent 'established principles' countenance departure from the 'but for' test of causation.
161Section 5D of the Civil Liability Act provides that the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
With these matters in mind, I turn to the critical issue of causation.
Did the lack of a working speedometer cause or materially contribute to the car being driven at a speed that was too fast for the conditions?
First as I have already noted in [116] above there is no reliable estimate of the car's speed before or during the accident. Next, I have no expert evidence about what speed the car may have been travelling at nor what minimum speed was necessary, given the nature of the road surface and the bend, before sliding could be expected.
I have no information about Ms Davie's driving experience save that she had a manual driver's license and was 28 years old. I do know that she had been at Ms Manuel's hostel for about four weeks and had driven this car during that time. She had driven it on gravel roads and on at least one occasion on Foley Road. She was aware that the speedometer did not work.
Ms Davie did give some evidence about her perceptions of the road where the accident occurred, her manner of driving at the time and her use generally of a speedometer when she drove. This evidence is also of short compass so I will set it out in full.
In her evidence-in-chief Ms Davie said she understood that the speed limit on the sealed roadways around Kojonup was 110 km per hour. Her recollection was that the same speed limit applied to the gravel roads. She was then asked:[38]
What speed did you try to drive on when you were on sealed roads?‑‑‑When on - on sealed roads, probably a little bit less than the actual speed limit itself. It would be around 70 kilometres an hour.
And what about on gravel roads? What speed were you trying to drive at?‑‑‑Probably between 50 and 60 kilometres an hour.
[38] ts 190.
The matter was taken up in cross-examination where this was said:
So how did you assess how fast to drive?‑‑‑Well, predominantly I guess by the feedback from the other passengers so that it was very difficult and the - the - it was - - -
Well - - -?‑‑‑If you were on the main road, obviously you could, you know, make sure that you were keeping in line with the - the traffic there but it was a very difficult thing to - to do when you were on a remote road.
All right?‑‑‑And because there wasn't a speedometer.
So when you were on the bitumen road, you drove according to what other cars were doing?‑‑‑Generally speaking, yeah. That in combination with any feedback from the passengers.[39]
[39] ts 352.
…
When you were driving along, you didn't ask either Jamie or Oleg how fast you were going, did you?‑‑‑I'm fairly sure that I would have at some point on the journey. I don't recall asking them right before the accident, but I'm fairly sure that at some point during the journey, I might have asked them because that was something that I generally done to get some indication of speed. I suppose (1) to make sure you're not going to get a ticket and (2) you know, obviously as a driver, you want to know what - what your potential speed could be.
But you don't remember doing it on the day of your accident, do you?‑‑‑It's difficult because we're going back seven years. But all I can say is I'm pretty certain every journey that I made, at least once on the journey if not more than once, I would have asked the other passengers, you know, what speed did they think I was doing. I'm fairly certain - so I'm fairly certain actually at some point on that journey, I would have asked at least once, if not more than that what - what speed did they think I was doing.
What you did ask them on that day was what the time was because you were running a bit late to meet the truck that was going to take you to the fields. Is that right?‑‑‑I may have asked what time it was, yeah.
Because you were running a bit late, weren't you?‑‑‑We might have been running around five minutes late.
And when you were travelling on the gravel in the lead up to the accident, that particular gravel road, so you know where I'm talking about?‑‑‑Yes.
All right. When you were travelling on the gravel, what did you judge your speed by?‑‑‑Well, I had nothing to judge my speed by, that was the whole - because the speedometer was broken. There was - there was nothing to judge the speed with.
That's the actual speed, but how did you judge what was a safe speed to travel at?‑‑‑I suppose guesswork, that was all there was, and relying on the other passengers to either say, you know, you're going too fast slow down, or you know, you're going too slow, speed up. But on that gravel road, neither passenger said to me to either speed up or to slow down.
No?‑‑‑That would have (indistinct) on my intuitive feeling against how fast I was going and any feedback that I would have received from the other passengers.
Well, you didn't get any feedback. Did you believe you were driving at a safe speed?‑‑‑Yes. Well, I think that I was apprehensive all the time when I was driving the car because I never really knew my speed. But certainly the intention was obviously to drive at a safe speed and not to put myself or the others at risk.
Yes?‑‑‑There would be no reason for me to do otherwise.
You thought you were driving safely and driving according to the conditions, didn't you?‑‑‑Yes.
And when you were on the straight stretch, Oleg asked you to move slightly to the left because he thought you were driving too close to the middle?‑‑‑That's correct.
And then shortly after that, you don't know how - exactly how long, you approached a right - sweeping right-hand bend?‑‑‑Yes.
So when you approached the bend, did you take care to stay to the left so that you didn't run into any oncoming traffic?‑‑‑It's really difficult to remember.
Well, wouldn't that be a normal thing to do?‑‑‑Yes. I would have obviously been - what - so what's the question, repeat the question, sorry. What was the question?
Did you make - were you careful to stay to the left so that you didn't run into any oncoming traffic that may have been around the bend?‑‑‑I would have been vigilant for any oncoming traffic, certainly. Yes.
So you would have been looking ahead to see if there was any oncoming traffic?‑‑‑Of course, yes. I would have been looking to make sure there was no oncoming traffic. And - yeah, again sometimes, but yeah, so I would have been paying attention that there was nothing coming ahead from Darkan.
So you would - so you wouldn't have been looking down at your speedometer, you would have been looking ahead to make sure you didn't crash into another vehicle, correct?‑‑‑Well, I'm fairly sure, you know, cars have a speedometer to - for sure, if there was a speedometer in the car, I would have been paying attention to the speedometer.
As you were - sorry?‑‑‑(Indistinct) of that.
As you were approaching a sweeping bend, you're saying you would have been looking down at your speedometer?‑‑‑Well, obviously, I probably would have looked at it briefly before then, and then I would have had an idea of my speed. Obviously if I was just about to turn a corner, that wouldn't be the point to suddenly look down at a speedometer, I guess. But I would be able to, as all drivers generally do, keep an eye on your speed and also be sure that you're not going to crash into any other car on the road.
Well, what's a safe speed to approach that bend on gravel?‑‑‑What's a safe speed to approach a bend on gravel?
That bend on gravel?‑‑‑That bend on gravel. In that particular car I would say - I'm thinking in miles per hour, but I would say about 25 miles per hour maximum in that particular car.
25 miles ‑ ‑ ‑?‑‑‑I think that would ‑ ‑ ‑
40 kilometres an hour?‑‑‑Yes, at the most. That's what I would say would be a safe speed to approach that band at.[40]
[40] ts 353 - ts 355.
Counsel for the plaintiff sought to clarify this in re-examination asking:
If you had a speedo on the car that worked, in the lead‑up to the bend what would you normally do?‑‑‑In terms of the speed?
Yes. So in the three to five hundred metres in the lead‑up to the bend, what would you normally do?‑‑‑I'm not sure I'm understanding the question. Are you asking what speed I would normally drive at?[41]
[41] ts 359.
….
PETRUSA DCJ: What would be your usual practice?
DROPPERT, MR: Yes. What would you usually do if you had a car with a speedo that worked?‑‑‑Slow down.
But how would you know to slow down? What would you do in terms of looking at the speedo?‑‑‑Well, I would look at it and see what speed I was going at and then I would adjust my speed accordingly.
What was the last bit?‑‑‑I said I would look at the - I would look at the speedometer and see what reading it was giving and adjust my speed accordingly. So I would look and see if I was doing, I don't know, 30. I would think, right, okay, we're coming up to a bend. Maybe drop to 25.
…
DROPPERT, MR: Right. You said you'd look at the speed and then you'd slow down, and then you added something about the speed. What was it you said then?‑‑‑I think that was all. I would - as approaching a bend, I would check the speed and I would slow down to make sure that the speed was a suitable speed to take a bend at.
You said to make sure it would be a suitable speed and then we lost the last words?‑‑‑Sorry, I think I just said I would - I would check the speed and I would make sure the speed was a suitable and safe speed to be taking a bend at.[42]
…
DROPPERT, MR: Have you driven cars with speedos that work before this accident?‑‑‑Yes. Yes.
And what use do you usually make of a - before this accident, of course. What use did you make of a working speedo as you would drive a car on highways, side roads, around town? Just tell us what you'd do. What was your usual practice?‑‑‑Well, I would generally regularly look at what speed the speedometer - look at what speed I would be doing and I would adjust my driving accordingly, make sure that the driving speed was safe. I would pretty frequently check the speed on the speedometer when driving in any situation, whether it be on a motorway, whether it be on - driving through a town. It would be something that you would use pretty much all the time to make sure that you're going at the right - the right speed.
PETRUSA DCJ: What do you mean by the right speed?‑‑‑Well, the speed that would be safe for the conditions of the road.[43]
[42] ts 360.
[43] ts 361.
In this evidence Ms Davie sought to emphasise, the importance of a speedometer to her capacity to drive safely. I do not accept Ms Davie's evidence regarding how she assessed her speed when driving this car. It would be an extraordinary thing for a driver to consult passengers about the speed of the car because one could have no confidence that their assessment was any better than their own. Further, as was the case on 26 June 2015, passengers do not necessarily pay any attention to the road and other conditions. In any event this claim is not supported by other evidence.
First Ms Huang had no recollection of Ms Davie asking her about the speed of the car on the day of the accident. She was specifically asked about this. She did recall Ms Davie asking about the time but not the speed. In my view it would be such an unusual thing for a driver of a car to ask a passenger for their estimate of the speed of the car that I would have anticipated that if it had occurred Ms Huang would have remembered it.
Neither of Mr Lich's statements address the question of Ms Davie asking him about the speed of the car at any time during the journey.
Finally, Ms Bonanno was never asked if Ms Davie had ever asked her about the speed of the car albeit she had travelled in this car when Ms Davie was driving. Given Ms Davie's evidence that this was her usual practice this is a matter I would have thought should have been asked. It is not to the point, as the plaintiff suggests in her closing submissions,[44] that a request by Ms Bonanno that Ms Davie drive more slowly is behaviour consistent with Ms Davie asking for and relying on feedback to determine her speed.
[44] See plaintiff's closing submissions dated 10 February 2022 at par 238.
I do not accept Ms Davie's evidence regarding her use of a speedometer generally when driving.
I accept as a general proposition that a driver will look at their speedometer from time to time when driving. Certainly, in built up areas where there are posted speed limits or areas where the posted speed changes, a driver will likely look at their speedometer and is likely to do so more often. This is particularly so given that traffic conditions can vary significantly, so driving over the posted speed limit at times is a real possibility. I also accept that when driving on unfamiliar roads a driver will likely check their speed when approaching a corner that has a recommended speed sign because this suggests that there is something about the road ahead that may not be apparent to those unfamiliar with it.
However, the suggestion implicit in Ms Davie's evidence, that a driver makes decisions about speed based on the reading given by the speedometer, is contrived. There is no specific formula used, by drivers, to calculate a speed that is appropriate, let alone safe for a particular road or portion of road.
It is trite to say that a driver must drive to the conditions. There are many pieces of information a driver considers when making decisions about their manner of driving including their speed. These include:
(a)the nature of the road surface;
(b)the configuration of the road e.g. straight, flat stretch of road or a narrow, winding road etc;
(c)the location of the road e.g. in the middle of a large city or remote rural area etc;
(d)any obstacles on the road or near to the road;
(e)any traffic guidance signs e.g. posted speed limits or recommended speed signs etc;
(f)the traffic conditions, that is the type of vehicles on the road and the number of them;
(g)the prevailing weather conditions;
(h)the mechanical condition of the vehicle being driven;
(i)the time of day, ie day, night, dusk, dawn etc;
(j)visibility (being the range at which the impending road and traffic conditions could be seen);
(k)familiarity with the route; and
(l)the driver's experience: that is, as a driver, as a driver of this vehicle or type of vehicle and as a driver on this type of road way.
Ms Davie's evidence that she would refer to her speedometer to decide the 'suitable' or 'right' speed ignores these factors. No driver looks at the road ahead and determines what the safe or suitable or right speed is before making any necessary adjustments. Nor does a driver look at their speedometer to confirm that their speed accords with their assessment of the conditions and therefore determination of a safe speed.
In any event there is no one right, suitable or safe speed for any given set of conditions. Even a recommended speed sign does not determine a single safe speed for a particular section of road. Adjustments for other conditions, like weather, lighting and type of vehicle, are still necessary. A safe speed is not determined by reference to the speed on the speedometer but by an assessment of the road conditions and how the car and driver are responding to the conditions.
Ms Davie's evidence makes it clear that at the time she was driving on 26 June 2015 she believed she was driving safely to the conditions[45] and specifically that she was driving at a safe speed that took into account the age of the car and the type of road.[46]
[45] ts 354, ts 355.
[46] ts 190.
I accept that the decisions Ms Davie made on 26 June 2015 about her manner of driving including her speed were made without the benefit of knowing her precise speed at any given point in time. There were no recommended speed signs and there is no suggestion that Ms Davie was exceeding the speed limit. A safe driving speed could only be assessed by regard to the prevailing road and environmental conditions and Ms Davie's driving experience and familiarity with the road conditions. Ms Davie's evidence was that at all times she was driving to the conditions and believed that her speed was safe i.e she assessed her speed as one that did not put herself or others at risk.[47] This would be so irrespective of the speed shown on the speedometer.
[47] ts 354.
Further, it is common experience that when driving in an unfamiliar place or in conditions where one feels less confident or as Ms Davie suggests 'apprehensive'[48] attention is focused on the roadway.
[48] ts 354.
I reject the plaintiff's submission that support for her case can be found in the differences between the speed estimated by Mr Lich and those Ms Davie says she was endeavouring to drive at.[49]
[49] See plaintiff's closing submissions dated 10 February 2022 at pars 242 - 244.
Implicit in this submission are two flawed assumptions, namely:
1.that Mr Lich's estimates of speed are accurate; and
2.that Ms Davie's estimate of the safe speed to negotiate this bend is accurate.
For reasons that I have already made clear at [116] above I can place no reliance on Mr Lich's evidence about the speed of the car before or near to the time of the accident.
Further, I can place no reliance on Ms Davie's evidence that 40 km per hour was the speed required to safely negotiate this bend. Ms Davie is not an expert and whilst this is not fatal to accepting this evidence, I have no meaningful information against which to evaluate her evidence. I do not know such things as:
1.the condition of the gravel road;
2.the camber of the road and in particular of the bend;
3.the nature of the right-hand sweeping bend, it's angle or length etc; and
4.the configuration of the road leading up to the right-hand sweeping bend so as to assess the opportunity to make assessments.
Without information of this kind Ms Davie's evidence is no more than an assertion that 40 km per hour was the speed necessary to safely negotiate this bend.
In any event, even were I to accept Mr Lich's estimate that prior to the accident the car was travelling at 80 km per hour and not the 50 or 60 km per hour Ms Davie suggested she was 'trying to drive at' I would not find differently. The difference between these speeds is significant and appreciable without the need to consult a speedometer. This is particularly so on gravel roads where common experience suggests that one tends to over-estimate speed. Likewise, the difference between 70 km per hour (the speed estimated by Mr Lich near the time of the accident and not at the time of the accident) and 40 km per hour (the speed Ms Davie suggested was a safe speed to negotiate the right-hand sweeping bend) is also significant and appreciable without regard to a speedometer.
Had Ms Davie assessed a safe speed to be 40, 50 or 60 km per hour during her journey I do not accept that she could have so misjudged her speed as to be travelling at the speeds estimated by Mr Lich particularly when negotiating the right-hand sweeping bend.
The position then is that I do not know what a safe speed was to negotiate this right-hand sweeping bend and I do not have any reliable information how near to this speed Ms Davie was travelling. I cannot therefore be satisfied that Ms Davie would have driven at a different speed had she had available precise knowledge of her speed (as provided by a working speedometer).
Finally on the issue of causation the plaintiff submits that s5C(2) Civil Liability Act would allow the court to find the issue of factual causation in favour of the plaintiff. Section 5C(2) Civil Liability Act provides:
In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) -
(a)whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b)whether and why the harm should be left to lie where it fell.
I have not been directed to any authority regarding the application of this section. However, in my view this is not an 'appropriate case'. The matters I have had regard to in coming to this conclusion include:
1.Ms Manuel's business was a small family business. Whilst it was a commercial enterprise it had social utility to the community providing reasonably priced accommodation for a workforce utilised by the wider community.
2.I am not satisfied that Ms Manuel knew that the speedometer was not working albeit she ought to have known. Her other conduct demonstrates a responsible attitude towards the maintenance of the car.
3.Ms Davie was aware that the speedometer did not work but chose to remain at Stonehaven Poodles and Backpackers and to continue to drive the car.
4.Ms Davie was the driver of the car and as such the one responsible for assessing the conditions to determine the manner of driving including the speed.
Given, all these matters I am not satisfied that had Ms Davie had a working speedometer, so that she knew her precise speed, she would have changed her manner of driving and in particular her speed.
Conclusions
I am satisfied that a person loaning a car to another is under a duty of care to ensure that the car is free from defects that affect safety and is reasonably safe for use (by a reasonably competent driver), so as to guard against the risk that the reasonably competent driver would lose control of the vehicle and have a motor vehicle crash.
The risk of harm, if the car was not free of defects that affected safety and was safe for use, is that the reasonably competent driver would lose control of the motor vehicle and crash causing injury.
I am satisfied that Ms Manuel breached her duty because she ought to have known that the car she provided, did not have a working speedometer. This was a defect that could affect the safe use of the car (emphasis added). For example, a person driving a car on an open highway may unintentionally drive substantially over the speed limit resulting in the loss of control of the car on a bend which could not be safely negotiated at a speed above the posted speed limit.
In this case I have found that, given the absence of evidence of any other cause, it is more likely than not that the car being driven by Ms Davie was going too fast to safely negotiate the right‑hand sweeping bend.
However, Ms Davie's unequivocal evidence was that she was driving to the conditions. She assessed that her speed was a safe one having regard to the conditions including the condition of the car and nature of the road.
I do not accept Ms Davie's evidence that she made decisions about a 'right' or 'suitable' speed which were either informed by her speedometer or were subsequently implemented by use of her speedometer.
I am not satisfied that Ms Davie would have driven any differently had she known her precise speed. It follows then that I am not satisfied that the absence of a working speedometer caused or materially contributed to this accident.
Accordingly, I find that Ms Manuel's negligence in loaning the car to Ms Davie without a working speedometer did not cause Ms Davie to lose control of, and crash, the car she was driving. I am not persuaded a working speedometer would have avoided or reduced the risk of injury to Ms Davie in the circumstances in which the crash occurred. I therefore dismiss her action.
I will hear the parties as to the appropriate orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
Associate to Judge Petrusa
25 OCTOBER 2022
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