Davie v Manuel - [2024] WASCA 21

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DAVIE -v- MANUEL [2024] WASCA 21
CORAM:   BUSS P
VAUGHAN JA
SEAWARD J

HEARD:   4 SEPTEMBER 2023
DELIVERED          :   7 MARCH 2024
FILE NO/S:   CACV 111 of 2022
BETWEEN:   CAROLINE DAVIE
Appellant
AND
DARRYL JUNE MANUEL
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PETRUSA DCJ
Citation: DAVIE -v- MANUEL [2022] WADC 91
File Number            :   CIV 1675 of 2018

Catchwords:

Tort - Negligence - Duty of care - Causation - Factual causation - Whether trial judge erred in law by failing to comply with the rule in Browne v Dunn - Meaning of 'contrived' - Procedural fairness - Whether trial judge erred in law in failing to provide procedural fairness to appellant - Whether trial judge's conclusion in relation to factual causation illogical or unreasonable - No denial of procedural fairness - No error of law

Legislation:

Civil Liability Act 2002 (WA), s 5C, s 5D

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	G Droppert SC & A Cavenagh
Respondent	:	D R Clyne

Solicitors:

Appellant	:	CLP Legal
Respondent	:	Mills Oakley

Case(s) referred to in decision(s):

Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Browne v Dunn (1893) 6 R 67
Burke v Corruption and Crime Commission [2012] WASCA 49
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Chester v WA Country Health Service [2022] WASCA 57
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Davie v Manuel [2022] WADC 91
Defendi v Szigligeti [2019] WASCA 115
East Metropolitan Health Service v Ellis (By His Next Friend Christopher Graham Ellis) [2020] WASCA 147
Frigger v Frigger [2023] WASCA 103
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Kuhl v Zurich Financial Services [2021] HCA 11; (2021) 243 CLR 361
Kuhl v Zurich Financial Services Australia Ltd [2009] WADC 4
Lazarevic v The State of Western Australia [2007] WASCA 156
McKay v Commissioner of Main Roads [2013] WASCA 135
Meadowcroft v The State of Western Australia [2023] WASCA 98
Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Moyes v Ensco Australia Pty Ltd [2022] WASCA 104
Nankivell v Insurance Commission of Western Australia [2017] WASCA 143
P v Q [No 2] [2023] WASCA 163
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Western Australian Planning Commission v The Board of Valuers [2018] WASCA 145

JUDGMENT OF THE COURT:

Introduction

The appellant, Caroline Davie, appeals from the decision of Petrusa DCJ dismissing her action in negligence against the respondent, Darryl Manuel. The appellant claimed damages for personal injuries sustained by the appellant in a car accident which occurred on 26 June 2015.
For the reasons detailed below, the appeal should be dismissed.

Background and the accident

The background and factual circumstances surrounding the accident are not in dispute and the below summary is taken from the Primary Decision.[1]
[1] Davie v Manuel [2022] WADC 91 (Primary Decision).
The appellant is a Scottish citizen who arrived in Australia in November 2014 on a working holiday. The appellant initially lived and worked in Perth at a backpacker hostel. In late May 2015, the appellant travelled to a backpacker hostel operated by the respondent from her property near the town of Arthur River, with a view to undertaking work in rural Australia for three months so she could fulfil the requirements necessary to extend her working visa for a further 12 months.
The respondent's backpacker hostel consisted of a number of caravans and a small cottage with three bedrooms, which in total could accommodate about 11 people. There was also a shared kitchen, laundry and ablution area. The respondent lived approximately a quarter of a kilometre away from the hostel in her own home with her husband.
Persons who came to stay at the backpacker hostel had opportunities to undertake farm work in the area. Local farmers would advise the respondent of work they had on their property and the respondent 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 the backpacker hostel, and therefore the backpackers needed transport to get to the farms. While some of backpackers had their own vehicles, others did not. For those without a vehicle, some of the farmers collected the backpackers from the hostel, and the respondent also had two vehicles that she would loan to the backpackers. One of those vehicles was a 1992 Toyota Corolla hatchback with a manual transmission, purchased four and half months prior to the accident (the car). The arrangement between the respondent and the backpackers was that the respondent was responsible for maintaining and servicing the car and the backpackers were responsible for the petrol.
At the time of the accident, the appellant had been at the hostel for four to five weeks and had either driven the car to or from various farms or had been a passenger in the car.
On 26 June 2015, the appellant and two other backpackers, Wei Huang (also known as 'Jamie') and Oleg Lich, were working at a farm owned by a Mr Saunders. The appellant had worked at Mr Saunders' farm before. Mr Saunders' property was approximately 100 km from the backpacker hostel and the appellant, Ms Huang and Mr Lich set out at approximately 6.45 am to drive to the farm, where they were due to start work at 8.00 am.
The appellant was the driver of the car, Ms Huang sat in the front passenger seat and Mr Lich sat in the back passenger seat. Both the appellant and Ms Huang had their seat belts on, and Mr Lich did not.
The majority of the journey was on sealed roads, however, the appellant was then required to drive on Foley Road. Foley Road is a gravel road. When negotiating a sweeping right‑hand bend on Foley Road, the car began to slide and ultimately slid and rolled and came to a stop, landing upside down on its roof and facing the opposite direction. The accident occurred approximately 2 or 3 km from Mr Saunders' farm.
The appellant was trapped inside the car. Mr Lich ran to Mr Saunders' farm for help and the appellant was airlifted to hospital in Perth. The appellant suffered a number of injuries, including fractures of the spine at the C4, C5 level that have resulted in incomplete tetraplegia. The appellant is, as a consequence, severely disabled.

Parties' case at trial

Appellant's case

The appellant's case as pleaded involved three claims, only one of which is relevant for the appeal.
First, the appellant pleaded a claim for breach of contract[2] which was dismissed by the learned trial Judge.[3] There is no appeal from this aspect of the Primary Decision. Secondly, the appellant pleaded a claim pursuant to s 5 of the Occupier's Liability Act 1985 (WA).[4] However, senior counsel for the appellant clarified in his opening submissions at trial that this claim was not pressed.[5]
[2] BAB 50 ‑ 51: Statement of Claim [2.4] and [6].
[3] Primary Decision [57] - [58].
[4] BAB 51: Statement of Claim [2.5] and [5].
[5] Trial ts 44.
Thirdly, the appellant pleaded a claim in negligence. It is this claim which is the subject of the appeal. The appellant pleaded that at all material times the respondent was under a duty of care in respect of the control, management and maintenance of the car so as not to expose the appellant, as a user of the car, to a foreseeable risk of harm.[6]
[6] BAB 51: Statement of Claim [4].
The statement of claim relevantly pleaded that in breach of this duty of care the accident was caused or contributed to by the negligence of the respondent.[7] The appellant pleaded a total of 14 particulars of negligence, however, ultimately only the following particulars concerning the speedometer of the car were in issue:[8]
[7] BAB 52 - 53: Statement of Claim [8].
[8] Primary Decision [8]; BAB 52 - 53: Statement of Claim [8].
The [Defendant] was negligent in that she:
…
8.3knew or ought to have known that the speedometer on the vehicle was not functioning;
8.4knew or ought to have known that the vehicle was unroadworthy pursuant to s 243(2)(2c) of the Road Traffic (Vehicles) Regulations 2014 (WA);
…
8.6supplied a vehicle which had a speedometer that was not working;
…
8.8placed the safety of the plaintiff at risk in that her ability to assess her response to wet conditions on an unsealed road were [sic] adversely affected because she did not have a reliable indication of her actual speed;
8.9placed 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 appellant's case at trial was that the speedometer in the car did not work and had not worked on any occasion when she drove the car,[9] and that she had told the respondent that the speedometer was not working and asked for the speedometer to be fixed.[10] The appellant's case was that in providing the appellant with a car without a working speedometer the respondent had breached the duty of care owed to the appellant.
[9] Primary Decision [64].
[10] Primary Decision [87] - [88].
In relation to factual causation, the appellant's case at trial was that the accident was caused by the appellant driving too fast around the right‑hand bend on Foley Road to maintain control of the car.[11] The appellant's case was that if the speedometer had been working, the appellant would have driven around the right‑hand bend on Foley Road at a slower speed (being approximately 40 kph), and that the absence of a working speedometer deprived the appellant of the ability to ascertain her speed in a way that was relevant to the fact that she was driving too fast, lost control and had the crash.[12]

Respondent's case

[11] Trial ts 39, 550 - 555, 558.

[12] Trial ts 560 - 562.

In her defence, the respondent denied that she owed the appellant a duty of care.[13] However, at trial the respondent accepted that she owed the appellant (or any person who used the car with her permission) a duty of care to ensure that the car was fit for use.[14]
[13] BAB 63: Defence [4].
[14] Primary Decision [9] and [59].
In her defence the respondent also denied she had breached that duty.[15] At trial, the respondent's evidence was that she did not accept that the speedometer did not work,[16] and denied that the appellant had told her that the speedometer did not work or asked for it to be fixed.[17]
[15] BAB 63: Defence [6].
[16] Primary Decision [71] and [90].
[17] Primary Decision [91].
The respondent's case was that there was no evidence as to the cause of the accident, including expert evidence, and therefore it could not be concluded that speed was a cause of the accident. The respondent's case was that there was no evidence as to the appellant's speed at the time of accident, or that it was excessive. Further, the appellant's evidence was that she was driving to the conditions, and therefore knowing the precise speed on the speedometer would not have changed her speed. In these circumstances, the respondent submitted that there was no evidence that the lack of a working speedometer caused or materially contributed to the accident.[18]
[18] Appellant's Case [15] accepted in the Respondent's Answer [1]; trial ts 146, 148, 514 - 517, 609 - 610.
The respondent also pleaded that if the appellant sustained the injuries, loss, or damage as alleged, then those injuries, loss, or damage were caused or contributed to by the appellant's own negligence. Particulars of contributory negligence were pleaded.[19]
[19] BAB 63: Defence [8].
The parties agreed the quantum of the claim on the last day of the trial.[20]

Evidence regarding speed and the speedometer

[20] Primary Decision [5].

The evidence in relation to the circumstances surrounding the accident and the use (or otherwise) of the speedometer is central to the determination of this appeal. It is therefore necessary to set out in some detail the evidence at trial concerning these matters.
Of the three occupants of the car, the appellant and Ms Huang gave evidence at the trial. Mr Lich did not, but two statements he had prepared were tendered by consent.
The appellant's evidence was that she had been working at Mr Saunders' farm intermittently over the previous two‑week period;[21] that she had driven the car previously to and from other farms; and that she had driven the car to or from Mr Saunders' farm previously.[22]
[21] Trial ts 185.
[22] Trial ts 186.
The trial judge had limited information before her as to the nature and quality of Foley Road, other than it was a gravel road. The appellant described the road as having a slight slope at each side of the road.[23] Ms Huang described the road as being wide enough to fit two cars and that it was quite smooth, not really 'lumpy'.[24] The appellant's evidence was that it was damp but not raining.[25]
[23] Trial ts 188.
[24] Trial ts 267.
[25] Trial ts 187.
The appellant's evidence was that she thought she might have asked Ms Huang and Mr Lich at some point during the journey what speed she was doing because the speedometer was not working and 'it was good to get feedback from others as to what speed they thought I was doing'.[26] The appellant also said that she was driving in the centre of Foley Road at one point because she thought it was the best surface to be driving on.[27] Shortly (but not immediately) before the accident Mr Lich asked her to move over to the left of the road slightly.[28]
[26] Trial ts 187 and 353.
[27] Trial ts 188.
[28] Trial ts 187 - 188.
The appellant described the accident in examination in chief as follows:[29]
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.
…
Right. And when you were describing the accident, you said you were moving too fast to regain control. Why do you say too fast?---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'd obviously misjudged what speed that 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'd obviously underestimated how fast I had been going. I was really just - I was guessing the speeds.
Do you know the speed limit in kilometres on the sealed roadways you were driving around Kojonup, Arthur River, leaving aside townships?---110 kilometres an hour I recall it as being.
And on the gravel roads, do you know if the speed limit was any different?---As I recall it, it was the same.
…
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.
[29] Trial ts 188 and 190.
In cross-examination the appellant was asked how she judged her speed in the car on the day of the accident:[30]
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.
…
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.
[30] Trial ts 352 - 353.
The appellant was also cross-examined as to how she judged her speed on the gravel road in the lead up to the accident:[31]
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.
[31] Trial ts 353 - 354.
The appellant was then cross-examined as to whether she thought she was driving safely to the conditions and her use of the speedometer:[32]
[32] Trial ts 354 - 355.
You thought you were driving safely and driving according to the conditions, didn't you?---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.
…
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 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.

In cross-examination the appellant was asked about a safe speed to approach the bend on the gravel road:[33]
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 [sic] at.
[33] Trial ts 355.
Finally, the appellant was cross-examined about the accident itself:[34]
And you were already running a bit late, weren't you?---We might have been running five minutes late, but really that wasn't of great concern. The farmers had stressed to us, 'Don't worry if you're late', on multiple occasions.
And then all of a sudden you lost control?---It's - well, I described 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.
Well, that - - -?---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.
[34] Trial ts 355.
In re-examination the appellant was asked questions about what she would normally do in the lead up to a bend in a car with a speedometer that worked:[35]
[35] Trial ts 359 - 361.
You were asked by my learned friend that as you approached the right-hand bend you wouldn't have been looking at the speedo. Do you remember that question?---Yes.
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?
No. I take it back. You were asked by my learned friend that as you went into the bend you wouldn't look at the speedo. Do you remember that?---Yes.
…
All right. So when you said you'd look before, what I'm asking you now is as you're driving along a straight bit of road towards the - towards a sweeping right-hand bend - - -
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.
…
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.
Ms Huang described the accident as follows:[36]
[36] Trial ts 263 - 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.
…
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 after - when we have to turn the big, like, bend or something.
…
All right. After that section, what did - what was the road - what was the direction of the road?---I can't really remember. 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. And 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.
In cross‑examination Ms Huang said that they were running a little bit late but were 'just on time' for arriving at Mr Saunders' farm; agreed that the appellant had asked her what the time was; and said that the appellant had not asked her anything about the speed she was driving at.[37]
[37] Trial ts 268 - 269.
Mr Lich's first statement was dated 9 July 2015 and was given to the police. In that statement he says that he was playing with his phone most of the time and would sometimes look out the window.[38] On one such occasion he looked up and noticed that the appellant was driving on the middle of Foley Road and sometimes would go on the right side of the road. Mr Lich asked the appellant to drive a little bit to the left side of the road, and the appellant did this.[39] At about 7.50 am Mr Lich put his phone into his jacket and watched the road. His statement then provides:[40]
[38] GAB 8.
[39] GAB 8.
[40] GAB 8 - 9.
21.I felt uncomfortable with the speed that Caroline was driving. It felt too fast for this gravel road.
22.I don't know what the speed was because I can't see the speedo.
23.In my experience it felt like she was driving about 80km/h.
24.We came up to a right bend and I felt the car starting to slide.
25.The car slide to the right and then to the left and then to the right.
26.I wasn't wearing a seatbelt so my reaction was I moved to the right passenger seat and hold on to something because the car was sliding left side first.
27.The car came up to the right side of the road and it fall in a hole.
28.When the car fell in the hole it flipped the car on to the roof.
Mr Lich's second statement was dated 6 August 2015 and was provided to a private investigator engaged by the plaintiff.[41] It relevantly provides as follows:[42]
[41] Primary Decision [113].
[42] GAB 14, 16 - 17.
The one thing that did not work in the vehicle and that was never fixed in the entire time that I was there was the speedometer.
It did not work and it was very difficult to judge speed in the vehicle.
…
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 this she did so.
…
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 70kmh.
There were also three photographs of the aftermath of the accident, showing the car upside down.[43] The trial judge concluded that two of the photographs showed a slight slope on each side of the road, as described by the appellant and also a low mound of sand which would appear to be the windrow referred to by Mr Lich.[44] There is no challenge to these findings.
[43] GAB 1 - 3.
[44] Primary Decision [106].
The appellant did not lead any expert evidence as to the likely cause of the accident. There was no evidence before the trial judge as to the speed limit on Foley Road (other than the appellant's evidence that she recalled it was the standard 110 kph) and no expert evidence as to what a safe speed would be on that portion of Foley Road, including when negotiating the right-hand bend. There was also no evidence as to the speed of the car at the time of the accident, other than that given by Mr Lich in his statements.

Decision and findings of the trial judge

Duty and breach

The learned trial judge found that the respondent was under a common law duty of care to ensure that the car would be properly maintained such that it could be safely driven, and such that it was free from defects that affected safety.[45]
[45] Primary Decision [60] and [161].
Her Honour found that the risk of harm, if the car was not free from defects that affected safety, was that the reasonably competent driver would lose control of the car and crash causing injury.[46]
[46] Primary Decision [162].
The learned trial judge found that the speedometer was not working prior to the accident.[47] The learned trial judge was not satisfied that the appellant raised the issue of the speedometer with the respondent,[48] however was satisfied that the respondent ought to have known that the speedometer was not working.[49] For these reasons, the learned trial judge held that the respondent had breached her duty of care by providing the appellant with a vehicle in which the speedometer was not working.[50]
[47] Primary Decision [76] - [78].
[48] Primary Decision [97] - [98].
[49] Primary Decision [99].
[50] Primary Decision [163].
These findings are not challenged on appeal. Rather, the appeal concerns the question of factual causation.

Causation

The learned trial judge observed that the totality of the evidence regarding the accident and its prelude were brief, and then proceeded to set out the key evidence in this regard given by the appellant and Ms Huang, and in Mr Lich's statements.[51]
[51] Primary Decision [107] - [113].
The learned trial judge then observed that there were many things about the circumstances surrounding the accident which, given the evidence, her Honour did not know. These included: the condition of the gravel road, (save for the limited evidence given by Ms Huang and the appellant and that it was 'damp but not raining'); whether the condition of the gravel road had changed, especially at the point that the car began to slide; the camber of the road; the distance the appellant had driven on gravel prior to the accident; the configuration/layout of the road leading up to the right‑hand bend; visibility; the nature of the right‑hand bend in terms of the degree of the angle; exactly where on the right‑hand bend that the car began to slide; the distance that the car travelled from the point that it began to slide to when it came to rest; and whether there were any markings on the road that show the path the car travelled.[52]
[52] Primary Decision [114].
Her Honour also observed that there was no information about the appellant's driving experience, save that she had a manual driver's licence; was 28 years old at the time of the accident; that she had been at the hostel for about four weeks and had driven the car during that time, including on gravel roads and at least on one occasion on Foley Road; and that the appellant knew that the speedometer did not work.[53]
[53] Primary Decision [132].
The learned trial judge observed that there was no expert evidence about the accident or its cause; whether the speed of the car could be determined at the time it began to slide; the minimum speed for the car to slide given the nature of the bend and the road surface; and what would have been a safe speed to negotiate the right-hand bend.[54] In relation to the speed the car was travelling, her Honour did not place any reliance on Mr Lich's written statements where he estimated the speed at 70 or 80 kph, for the reasons that he was travelling in the rear of the car; was largely distracted by looking at his phone; and his driving experience was unknown.[55]
[54] Primary Decision [115].
[55] Primary Decision [116] and [152].
However, based on the evidence that was adduced, the learned trial judge concluded that it was more likely than not that the appellant was driving too fast to maintain control of the car and safely negotiate the bend.[56] The key paragraphs of her Honour's reasoning are as follows:
117The 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.
118I 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.
…
120The 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.
…
164In 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.
[56] Primary Decision [117] - [120] and [164].
Her Honour found that the more critical issue for the purposes of causation was 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.[57]
[57] Primary Decision [121].
In this regard, the learned trial judge made three key findings. First, her Honour did not accept the appellant's evidence regarding how she assessed her speed when driving the car, including by asking her passengers for feedback. Her Honour stated: [58]
… 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.
[58] Primary Decision [137].
The learned trial judge also concluded that the appellant's evidence regarding consulting passengers about the speed of the car was not supported by the evidence given by the other witnesses called at the trial who were or had been passengers when the appellant was driving the car on various occasions.[59]
[59] Primary Decision [137] - [140].
Secondly, the learned trial judge did not accept the appellant's evidence regarding her use of a speedometer generally when driving.[60] Her Honour accepted as a general proposition that a driver will look at their speedometer from time to time when driving, for example, in built up areas where there are posted speed limits or when driving on unfamiliar roads and there is a recommended speed sign. However, her Honour concluded:[61]
… 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. (emphasis added)
[60] Primary Decision [141].
[61] Primary Decision [143].
Rather, the learned trial judge observed that a driver considers many pieces of information when making decisions about their manner of driving, including their speed, including the following 12 pieces of information:[62]
[62] Primary Decision [144].
(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.
The learned trial judge observed that the appellant's evidence that she would refer to her speedometer to decide the 'suitable' or 'right' speed ignored those factors:
145Ms 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.
146In 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.
The learned trial judge accepted that the driving decisions made by the appellant were made without the benefit of knowing her precise speed. However, in light of the appellant's evidence that she believed she was driving safely to the conditions; that she was driving at a safe speed that took into account the age of the car and the type of road; the lack of any recommended speed signs and the lack of any suggestion that the appellant was exceeding the speed limit, her Honour concluded that she could not be satisfied that the appellant would have driven at a different speed had she had available precise knowledge of her speed as provided by a working speedometer.[63]
[63] Primary Decision [147] - [148], [157]. See also [167].

Thirdly, her Honour rejected the appellant's submission that support for her case could be found in the differences between Mr Lich's estimate of the speed the appellant was driving at (between 70‑80 kph) and the appellant's evidence that she considered 40 kph to be a safe speed to go around the bend.[64] In this regard, the learned trial judge concluded:
[64] Primary Decision [150].
152For 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.
153 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, its [sic] 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.
154Without 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.
Her Honour went on to conclude that even if she were to accept Mr Lich's estimate, her decision would not be different:[65]
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.
[65] Primary Decision [155].
Accordingly, her Honour was not satisfied that the appellant would have driven at a different speed had she had available precise knowledge of her speed as provided by a working speedometer,[66] and in those circumstances the learned trial judge concluded that she was not satisfied that the lack of a working speedometer caused or materially contributed to the accident.[67]
[66] Primary Decision [157], [167].
[67] Primary Decision [167] - [168].
Finally, the learned trial judge concluded that, to the extent the appellant relied on s 5C(2) of the Civil Liability Act 2002 (WA) (Civil Liability Act), she did not consider this was an 'appropriate case' for the purposes of that section.[68] As there is no appeal in relation to her Honour's finding in relation to s 5C(2), it is not necessary to consider this issue further.
[68] Primary Decision [158] - [159].

Grounds of appeal

The appellant's case advances the following four grounds of appeal:[69]
[69] WAB 5-7.
Ground 1
The Learned Trial Judge having found that:
(a) There was a duty to maintain the car provided by the Respondent to the Appellant such that it could be safely driven: Reasons [60];
(b) The speedometer on the vehicle was not working: Reasons [76];
(c) The Respondent ought to have known that the speedometer was not working: Reasons [99];
(d) In providing the vehicle without a working speedometer for use by the Appellant, the Respondent breached her duty of care to the Appellant: Reasons [163];
(e) The accident was caused by the Appellant travelling too fast to maintain control of the car and safely negotiate the right-hand sweeping bend and maintain control of the car: Reasons [120], [164].
the Learned Trial Judge erred in law in finding that the Appellant's evidence that she would have used a working speedometer to make decisions about speed based on the reading given by the speedometer was contrived (Reasons [98])[70] in circumstances where:
[70] While ground 1 refers to Primary Decision [98] the critical finding as to an aspect of the appellant's evidence being 'contrived' is at Primary Decision [143] as reproduced at [54] above.
(f) The Appellant's evidence was that she would have used a working speedometer to set a safe speed to travel through the corner on the gravel road: Reasons [36] [sic [136]];
(g) The only challenge to the Appellant's evidence was that she would not have looked at the speedometer whilst she was travelling through the corner which she agreed but stated that she would have looked before entering the corner: Reasons [35] [sic [135]];
(h) The question of whether the Appellant was truthful as to that evidence or any evidence was not the subject of submissions – in writing or orally – by the Respondent's Counsel nor raised by the Learned Trial Judge during closing oral submissions.
Ground 2
The Learned Trial Judge erred in law in denying the Appellant procedural fairness in finding that the Appellant's evidence that she would have used a working speedometer to make decisions about speed based on the reading given by the speedometer was contrived in circumstances where:
(a) The Appellant's evidence that she would have used a working speedometer to set a safe speed to travel through the corner on the gravel road (Reasons [35], [36]) [sic [135] and [136]] was not the subject of challenge in cross-examination;
(b) The only challenge to the Appellant's evidence was that she would not have looked at the speedometer whilst she was travelling through the corner which she agreed but stated that she would have looked before entering the corner: Reasons [135], T354-355;
(c) The Learned Trial Judge's formulation of factors that a driver would take into account (Reasons [144]) and the conclusion that the Appellant had not given evidence as to any of them was not put to the Appellant in that form either by Counsel for the Respondent or the Learned Trial Judge;
(d) The question of whether the Appellant was truthful as the evidence as to the use to which she put a working speedometer or any evidence was not the subject of submissions – in writing or orally – by the Respondent's Counsel nor raised by the Learned Trial Judge during closing oral submissions.
Ground 3
The Learned Trial Judge erred in law in finding that the Appellant would not have driven differently had there have been a working speedometer in the car (Reasons [167]) in circumstances where:
(a) The Appellant's evidence was that she would have used a working speedometer to set a speed of 25 mph/40 kph to travel through the corner on the gravel road (Reasons [35], [36]) [sic [135] and [136]] was not the subject of challenge in cross‑examination;
(b) The only evidence as to the speed of the car was that it was travelling at 80 kph or 70 kph (Reasons [112], [113]) was from Mr Lich. His two statements were tendered by consent by the Respondent and Appellant respectively. The Learned Trial Judge should not have disregarded them;
(c) The Learned Trial Judge found that the Appellant was travelling too fast to maintain control of the car and safely negotiate the right-hand sweeping bend and maintain control of the car: Reasons [120], [164].
Ground 4
The Learned Trial Judge erred in law in failing to find that the Appellant would have driven at a slower speed had there have been a working speedometer in the car and that the absence of a working speedometer was a material contributing factor to the accident.
All four grounds allege an error of law. However, only ground 2 specifies the error of law that is alleged (being a denial of procedural fairness). The remaining grounds of appeal merely state that there has been an error of law, and the appellant's written submissions address grounds 1 ‑ 3 in combination without elucidating the individual error or errors of law alleged. There is also a significant degree of overlap between the particulars of each ground of appeal.
During oral submissions, senior counsel for the appellant confirmed that grounds 1 ‑ 3 were each concerned with the same finding made by the trial judge, being the finding in [143] of the Primary Decision (see [54] above) that the learned trial judge found the appellant's evidence as to making decisions about speed based on speedometer readings to be 'contrived'.
Senior counsel for the appellant outlined in oral submissions that ground 1 alleged an error of law on the part of the learned trial judge in making the finding in [143] of the Primary Decision in the form of a failure by the respondent (and the trial judge) to comply with the rule in Browne v Dunn,[71] having regard to the matters contained in particulars (f), (g) and (h) in the ground of appeal.[72]
[71] Browne v Dunn (1893) 6 R 67.
[72] Appeal ts 21 - 22.
In relation to ground 2, senior counsel confirmed in oral submissions that ground 2 alleged an error of law on the part of the learned trial judge in making the finding in [143] of the Primary Decision, in the form of a failure by the trial judge to accord the appellant procedural fairness, having regard to the matters contained in particulars (a), (b), (c) and (d) in the ground of appeal.[73]
[73] Appeal ts 21 - 22.

Senior counsel clarified in oral submissions that ground 3 attacks the reasoning process and the conclusion of the trial judge in relation to factual causation on the basis that (leaving aside whether the rule in Browne v Dunnwas complied with and whether the appellant was accorded procedural fairness) the conclusion reached by the trial judge was illogical or unreasonable having regard to the matters in particulars (a), (b) and (c) of the ground of appeal.[74]
[74] Appeal ts 20 and 22 - 23.

Finally, in relation to ground 4, senior counsel accepted in oral submissions that this ground alleged an error of fact and not an error of law. In ground 4, the appellant alleges that if one or more of grounds 1 ‑ 3 are allowed, then the trial judge erred in fact in failing to infer that the lack of a working speedometer was a material contributing cause of the accident. The appellant's case is that if one or more of grounds 1 ‑ 3 are successful, the learned trial judge should inevitably have found as a necessary inference that the lack of a working speedometer was a material contributing cause of the accident.[75] Accordingly, ground 4 is dependent on one or more of grounds 1 ‑ 3 being successful.
[75] Appeal ts 23 - 24.

Notice of contention

In addition to defending the grounds of appeal, the respondent filed a notice of contention in which the respondent submits that the appellant's claim should also have been dismissed on the ground that:[76]
… the learned Trial Judge was wrong in law in finding that speed was causative of the accident because there was no evidence or no sufficient evidence for her to reach that conclusion.
[76] WAB 31.
The crux of the notice of contention is that there was insufficient evidence to establish the cause of the accident. The respondent contends that in light of the lack of information known as to the circumstances surrounding the accident, the speed the appellant was driving and what was a safe speed to negotiate the bend,[77] it was not open to her Honour to conclude at [164] of the Primary Decision that:
[G]iven the absence of evidence of any other cause, it was more likely than not that the car being driven by Ms Davie was going too fast to safely negotiate the right-hand sweeping bend.
[77] Appeal ts 26 - 29.

Legal principles - causation

The legal principles regarding factual causation are governed by both the Civil Liability Act and the common law. The Civil Liability Act guides, but does not displace, the application of common law methodology on the issue of causation.[78]
[78] Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 [22].
The starting point is s 5C and s 5D of the Civil Liability Act which relevantly provide:
5C. General principles
(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).
…
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault —
(a) subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b) evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
…
5D.      Onus of proof
In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Proof of causation under the statute therefore involves two distinct steps: the first is a factual question as to the cause of the particular harm (factual causation) and the second is a normative question as to whether the tortfeasor should bear legal responsibility for that harm (scope of liability).
The test of factual causation in s 5C(1)(a) is determined by the 'but for' test of causation being whether, on the balance of probabilities, the harm that in fact occurred would not have occurred absent the tortfeasor's negligence.[79]
[79] Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 [16]; Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 [18].
A plaintiff need only prove that the defendant's negligence was 'a' cause of his or her damage, and not 'the' cause.[80] As observed by this court in East Metropolitan Health Service v Ellis (By His Next Friend Christopher Graham Ellis):[81]
It is often said, for example, that the plaintiff must establish that the defendant's negligence 'caused or materially contributed to' his or her loss.
[80] East Metropolitan Health Service v Ellis (By His Next Friend Christopher Graham Ellis) [2020] WASCA 147 [597].
[81] East Metropolitan Health Service v Ellis (By His Next Friend Christopher Graham Ellis) [2020] WASCA 147 [597].
In the present case, the negligence in question is the failure by the respondent to ensure that the car contained a working speedometer, and the harm in question is the injury to the appellant as a result of the accident.
In order to satisfy the test for factual causation it was therefore necessary for the appellant to establish, on the balance of probabilities, that if the car had a working speedometer the appellant would have (1) been driving at a slower speed as she negotiated the right‑hand bend on Foley Road and (2) at the lower speed the accident would not have occurred and the appellant would not have suffered the injury that she sustained in the accident. This necessarily involved the trial judge making an inference as to what would have occurred if the car contained a working speedometer. These propositions were accepted by the appellant.[82]
[82] Appeal ts 9.
In East Metropolitan Health Service Ellis (By His Next Friend Christopher Graham Ellis),[83] this court explained the concept of factual causation, and the role that the drawing of inferences plays, as follows:
263 In this regard, it is clear, and there can be no doubt, that mere proof by a plaintiff of the possibility that a defendant's breach caused the plaintiff to suffer harm is insufficient. The court must be satisfied that it is more probable than not that the defendant's breach caused the relevant harm; it is not sufficient to conclude that the breach may have been a cause of the harm.
264At the same time, it is also well-established that causation may be proved by inference. If direct proof is not available, an inference of causation may be drawn if the circumstantial evidence is sufficiently strong and coherent to support a definite inference to that effect. Before such an inference can be drawn, there must be more than two conflicting inferences of equal probability.
265The drawing of an inference has been described as 'an exercise of the ordinary powers of human reason in the light of human experience'. A court must, of course, avoid conjecture, but the distinction between permissible inference and conjecture occurs on a continuum in which there is no bright line division.
[83] East Metropolitan Health Service v Ellis (By His Next Friend Christopher Graham Ellis) [2020] WASCA 147.
Importantly, as observed by this court in Chester v WA Country Health Service,[84] for the purposes of s 5C(3) the hypothetical question as to what the plaintiff 'would have done' if the tortfeasor had not been at fault:
… is always a matter of inference that is to be determined based on evidence that is necessarily limited. That is because, first, the question is a hypothetical one; it requires a finding as to a past that might have, but did not, occur. Secondly, it is a question in relation to which the evidence of the plaintiff, as to what he or she would have done, is inadmissible. (emphasis in original)
[84] Chester v WA Country Health Service [2022] WASCA 57 [134].

Grounds 1 and 2 - disposition

It is convenient to deal with grounds 1 and 2 together as the grounds overlap to a significant degree.

Overview of appellant's case

Ground 1 asserts that the learned trial judge erred in law in [143] of the Primary Decision in finding aspects of the appellant's evidence to be 'contrived', by reason of a failure to comply with the rule in Browne v Dunn, when read with the matters referred to in particulars 1(f), 1(g) and 1(h). The appellant's case is that the finding in [143] is a finding going to the appellant's credibility, and the learned trial judge concluded that the appellant was untruthful or dishonest in giving her evidence in circumstances where there was no cross‑examination to this effect.[85]
[85] WAB 11 - 14: appellant's submissions [27] - [44].
The appellant's case in relation to ground 2 is almost identical to her case in relation to ground 1, save that the error of law alleged is failing to provide procedural fairness. Particulars 2(a), 2(b) and 2(d) are, in substance, the same as particulars 1(f), 1(g) and 1(h). The only additional matter is raised in particular 2(c), where the appellant asserts that the various factors relied on by the learned trial judge in [144] of the Primary Decision (being the reasons underpinning her Honour's conclusion in [143]) were not the subject of submissions by the respondent or put to the appellant by the learned trial judge.

Rule in Browne v Dunn

The rule in Browne v Dunn comprises two limbs. The first limb is that, unless notice has already clearly been given of the party's or cross‑examiner's intention to rely upon such matters, a party or cross‑examiner who intends to invite the court to disbelieve an opposing witness must put to the witness in cross‑examination the grounds upon which the evidence is to be disbelieved. The second limb is that, unless notice has already clearly been given of the party's or cross‑examiner's intention to rely upon such matters, a party or cross‑examiner must put to an opposing witness in cross‑examination the nature of the case upon which it is intended to rely in contradiction of the witness's evidence, especially where that case relies upon inferences to be drawn from other evidence.[86]
[86] See Nankivell v Insurance Commission of Western Australia [2017] WASCA 143 [52] and the authorities cited therein; Burke v Corruption and Crime Commission [2012] WASCA 49 [180].

However, the rule does not apply where the witness is on notice that his or her evidence is in contest. Such notice may come from a variety of sources, including the originating process, the pleadings, the other side's opening, and from the general manner in which the case is conducted.[87]
[87] Meadowcroft v The State of Western Australia [2023] WASCA 98 [56]; P v Q [No 2] [2023] WASCA 163 [62]. See also Lazarevic v The State of Western Australia [2007] WASCA 156 [17] (McLure JA, Wheeler JA & EM Heenan AJA agreeing); Nankivell v Insurance Commission of Western Australia [2017] WASCA 143 [56].
The rule is concerned with substantive unfairness,[88] and the rule must therefore be applied flexibly.[89] Ordinarily, it will not be necessary to put to a party to the proceedings a matter which is clearly in issue in the case.[90]

Procedural fairness

[88] Meadowcroft v The State of Western Australia [2023] WASCA 98 [62]; P v Q [No 2] [2023] WASCA 163 [62]; Nankivell v Insurance Commission of Western Australia [2017] WASCA 143 [53]; Burke v Corruption and Crime Commission [2012] WASCA 49 [181].

[89] Nankivell v Insurance Commission of Western Australia [2017] WASCA 143 [54]; Burke v Corruption and Crime Commission [2012] WASCA 49 [182].

[90] Nankivell v Insurance Commission of Western Australia [2017] WASCA 143 [57].

The principles relating to procedural fairness are well settled and were recently outlined by this court in Defendi v Szigligeti[91] and approved in Frigger v Frigger.[92]
[91] Defendi v Szigligeti [2019] WASCA 115 [45] - [48].
[92] Frigger v Frigger [2023] WASCA 103 [38] - [41].
It is axiomatic that a court is obliged to accord procedural fairness to a litigant.[93] However, to say that a court is obliged to afford procedural fairness is only the first step of analysis. The second step (and usually the more critical step) is to identify the content of the requirements of procedural fairness.[94]
[93] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [194].
[94] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585.
Although sometimes expressed in terms referring to a necessity for a hearing, the fundamental requirement of procedural fairness is (relevantly for present purposes) that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions.[95] However, the requirements of procedural fairness are not fixed or immutable.[96] Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances.[97]
[95] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589; International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], [88], [141]; Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 [51].
[96] Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [156].
[97] Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [156]; Western Australian Planning Commission v The Board of Valuers [2018] WASCA 145 [114].
Generally speaking, in litigation the parties must anticipate combinations and permutations of various findings and adduce evidence and make submissions at the trial on all the potential findings of fact on the issues litigated. Any gap in the evidence on an issue will generally operate to the detriment of the party carrying the burden of proof on that issue.[98]
[98] McKay v Commissioner of Main Roads [2013] WASCA 135 [156].
A person to whom procedural fairness is owed is, ordinarily, entitled to have brought to his or her attention the critical issues or factors on which the decision is likely to turn so as to give the person an opportunity to deal with them.[99] However, a decision‑maker is not usually required to disclose to a person to whom procedural fairness must be accorded the decision‑maker's mental processes, provisional views or proposed conclusions before a final decision is made.[100] The position may be different when the decision-maker's evaluation or conclusion is one that could not have reasonably been anticipated.[101] In this context, the observations of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd,[102] are relevant:
Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case …
The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi at 108-109:
1 The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J); Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Burchett J).
2 The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister of Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634.
[99] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 587; Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [81], [83]; Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 [215].
[100] Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 [217].
[101] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591 ‑ 592; McKay v Commissioner of Main Roads [2013] WASCA 135 [157]; Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 [217] - [218].
[102] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591 ‑ 592.
This statement of principles was referred to with approval by this court in Apache Northwest Pty Ltd v Agostino [No 2][103] and McKay v Commissioner of Main Roads.[104]

Introductory matters

[103] Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 [217].

[104] McKay v Commissioner of Main Roads [2013] WASCA 135 [157].

When regard is had to all the evidence before the learned trial judge, and the Primary Decision is read fairly as a whole, it is evident that grounds 1 and 2 proceed, at least in part, on the basis of a misunderstanding or misconstruction of aspects of both the evidence and the Primary Decision. These reasons first address and identify these misunderstandings or misconstructions, before going on to consider the effect that each has on the fundamental propositions made by the appellant in grounds 1 and 2. The reasons then address the other matters raised in the grounds of appeal.

Misunderstandings or misconstructions

What is meant by 'contrived' and what evidence does the finding relate to?

The appellant's case proceeds on the basis that the reference to 'contrived' in the learned trial judge's finding is to be understood as a reference to the appellant being untruthful or in some way dishonest in her evidence. Both the appellant's written and oral submissions proceeded on this basis. This is broadly consistent with one common definition of 'contrived':[105]
1.to plan with ingenuity; devise; invent.
2.to plot (evil, etc.).
3.to bring about or effect by a device, stratagem, plan, or scheme; manage (to do something).
4.to form schemes or designs; plan.
5.to plot.
[105] Macquarie Dictionary.
However, when the finding of the learned trial judge is considered in the context of the Primary Reasons as a whole, we do not consider that this is the meaning intended to be conveyed by the learned trial judge.
As outlined earlier in these reasons, the learned trial judge made three key findings in relation to the appellant's evidence regarding the question of speed and the role played by a speedometer when driving. One concerned the appellant's evidence given in cross‑examination as to how she assessed her speed when driving the car (including by asking her passengers for feedback).[106] The second concerned the appellant's evidence in cross-examination about what she considered to be a safe speed to drive around the right-hand bend.[107]Her Honour did not find either of these aspects of the appellant's evidence to be 'contrived'.[108] The trial judge did not accept the evidence as to how the appellant assessed her speed because it was implausible, illogical and not supported by (indeed inconsistent with) other evidence.[109] The trial judge did not accept the evidence as to what the appellant considered to be a safe speed because the appellant was not an expert and the trial judge had no meaningful information against which to evaluate the appellant's evidence.[110]
[106] Trial ts 351 - 354.
[107] Trial ts 355.
[108] Primary Decision [137] - 140] and [153] - [154].
[109] Primary Decision [137] ‑ [140].
[110] Primary Decision [153] ‑ [154].
The evidence which the learned trial judge found to be 'contrived' was the suggestion, implicit in the appellant's evidence regarding her general practice when driving with a working speedometer and approaching a bend in a road, that a driver makes decisions about speed based on the reading given by the speedometer.[111]
[111] Trial ts 359 - 361.
The learned trial judge did not accept this evidence because her Honour did not accept the 'suggestion implicit' in that evidence, being that a driver makes decisions about speed based on the reading given by the speedometer.[112] It is only this implicit suggestion which the learned trial judge found to be 'contrived'.
[112] Primary Decision [141] - [146].
In answering the questions put in re-examination, the appellant was being asked about her usual practice when driving. The appellant's evidence necessarily involved her considering, attempting to recall, and then describing her usual behaviour. This evidence, by its very nature, involves an element of reconstruction by the appellant and is given with the benefit of hindsight.
The learned trial judge does not, in the Primary Decision, state that she considers that the appellant was being dishonest or not telling the truth in her answers to the relevant questions or was deliberately deceiving in presenting her evidence for the purposes of her case at trial. The learned trial judge does not make any adverse findings in relation to the appellant's credit. No such case was advanced by trial counsel for the respondent in his oral closing submissions. Nothing in the learned trial judge's reasons suggests dishonesty or untruthfulness on the part of the appellant. In these circumstances, the use of the word 'contrived' may have been unfortunate on the part of the learned trial judge in so far as it suggests dishonesty or untruthfulness.
What, in our view, the learned trial judge was seeking to convey by the use of the word 'contrived' was that the implicit suggestion in the appellant's evidence was artificial, forced and unrealistic, and thus incapable of acceptance. It is a finding as to the cogency of the implicit suggestion within the appellant's evidence rather than an adverse finding as to credibility.

Why was the implicit suggestion contrived?

Particular 2(c) of ground 2 challenges the reasons for the conclusion reached by the learned trial judge in [143] of the Primary Decision. Those reasons are detailed in [144] - [146] of the Primary Decision and the ground is primarily concerned with the 12 factors referred to by her Honour in [144] of the Primary Decision.
Particular 2(c) as drafted contains two propositions. First, that the learned trial judge's formulation of the 12 factors that a driver would take into account in [144] was not put to the appellant in that form by either the respondent or the learned trial judge. That can be put to one side for present purposes. Second, that the learned trial judge's conclusion that the appellant had not given evidence as to any of these factors was not put to the appellant by either the respondent or the learned trial judge. The appellant submits that the learned trial judge reasoned that as the appellant had not referred to or addressed the 12 factors in her evidence the [suggestion implicit in the] appellant's evidence was contrived.[113]
[113] Appeal ts 12 and 19.
The second proposition in particular 2(c) proceeds on the basis of a misconstruction of the learned trial judge's reasoning process. The learned trial judge's reasons at [144] - [146] are set out earlier in these reasons. When considered in full, it is apparent that her Honour did not conclude or rely on the fact that the appellant did not give evidence as to or address the 12 factors identified in [144] of the Primary Decision. Rather, the learned trial judge assessed the evidence given by the appellant and concluded that it was inconsistent with or failed to have regard to the manner in which a person actually drives a car, and in particular determines a safe speed at which to drive. The learned trial judge referred to and relied on those 12 factors as part of that reasoning process, but the finding at [143] was not based on the appellant not giving evidence as to each of those 12 factors.

Nature and admissibility of the appellant's evidence

Ground 1(f) and ground 2(a) assert that the learned trial judge erred in law in making the finding in [98] of the Primary Decision (but meaning the finding at [143] of the Primary Decision) in circumstances where:[114]
The Appellant's evidence was that she would have used a working speedometer to set a safe speed to travel through the corner on the gravel road …
[114] See also WAB 10, 14 and 15: appellant's submissions [19], [45] and [48].
There are two difficulties with these paragraphs as drafted. The first is that in accordance with s 5C(3) of the Civil Liability Act, evidence of what the appellant would have done if the respondent had not been at fault is not admissible for the purposes of determining factual causation. Therefore, to the extent the appellant in grounds 1 and 2 relies on evidence as to what the appellant would have done on that corner on Foley Road if she did have a working speedometer, that evidence is inadmissible and does not assist the appellant's case.
The second difficulty is that a review of the trial transcript reveals that the suggested evidence as described in grounds 1(f) and 2(a) was not, in any event, the appellant's actual evidence.
The evidence given by the appellant is set out in detail in these reasons. The appellant did not give evidence as to what she would have done on the right‑hand corner of Foley Road if the car had a working speedometer. Rather, the appellant gave evidence as to how she assessed her speed in the car (given the absence of working speedometer); evidence that she considered a speed of 40 kph to be a safe speed to negotiate a corner; and also evidence as to her general or usual practice when driving if she had a car with a working speedometer.[115]
[115] Trial ts 355 - 361.
In oral submissions in the appeal, senior counsel for the appellant sought to instead rely on the appellant's evidence as given.[116] Evidence as to the appellant's general or usual practice when driving is admissible and may be evidence from which the trial judge is able to draw an inference as to what the appellant would have done if the car had a working speedometer. However, evidence of this nature is different to direct evidence as to what the appellant would have done in the car when negotiating the right‑hand bend on Foley Road if the car contained a working speedometer. The relevance of the appellant's evidence as given in the context of the reasonableness of the decision of the learned trial judge is considered further in relation to ground 3.

Was there a failure to comply with the rule in Browne v Dunn or accord the appellant procedural fairness?

[116] Appeal ts 4, 11, 22.

For the following reasons we do not consider that the appellant has established that there has been a failure to comply with the rule in Browne v Dunn in the manner alleged, or a failure by the learned trial judge to accord the appellant procedural fairness in the manner alleged.
First, grounds 1 and 2 proceed on the basis of the misconstruction of the meaning of the term 'contrived' in [143] of the Primary Decision. Properly understood, the word 'contrived' is not a reference to the appellant being untruthful or dishonest when giving her evidence. Accordingly, the lack of any cross‑examination by the respondent as to the appellant's credit (see grounds 1(g) and 2(b)) or the lack of any submissions by the respondent regarding the truthfulness of the appellant (or any questions regarding the same by the learned trial judge) (grounds 1(h) and 2(d)) is not to the point and does not reveal any failure to comply with the rule in Browne v Dunn or a failure to accord procedural fairness.
Secondly, ground 2 proceeds, in part, on the basis of a misconstruction of the reasoning of the learned trial judge in [144] - [146] of the Primary Decision. Her Honour did not conclude that the appellant's evidence regarding her general practice when driving should not be accepted because the appellant did not give evidence as to or address in her evidence the 12 factors identified in [144] (see the second proposition in ground 2(c)). In these circumstances, it was not necessary to put this specific proposition to the appellant and accordingly there was no failure to comply with the rule in Browne v Dunn and no denial of procedural fairness on this basis.
Thirdly, grounds 1 and 2 as drafted proceed on the basis of a misunderstanding or misdescription of the appellant's evidence (grounds 1(f) and 2(a)). That misunderstanding has two consequences for the errors of law alleged: (1) the appellant's evidence was not as described and sought to be relied upon by the appellant and, (2) in any event, the appellant's evidence as described is inadmissible for the purposes of establishing causation.
Fourthly, even if regard is had to the appellant's evidence as given (and not as drafted in the written ground of appeal), we do not consider there has been a failure to comply with the rule in Browne v Dunn or a failure to accord the appellant procedural fairness. The appellant was on notice that the issue of causation was in issue between the parties. The appellant's case, as evident from the pleadings[117] and the respondent's oral opening[118] and closing submissions,[119] was that causation was denied. The respondent's case was that there was no evidence that speed was the cause of the accident or that the lack of a working speedometer caused or materially contributed to the accident. Therefore, this was a situation where the witness, also being a party to the proceedings, was on notice that her evidence regarding any matter to do with the cause of the accident, and the role played by the speedometer, was in issue.
[117] BAB 54 and 63: statement of claim [9], denied in defence [6].
[118] Trial ts 146, 148.
[119] Trial ts 513 - 517, 521.
Fifthly, the appellant was cross‑examined by trial counsel for the respondent as to how she judged her speed in the car in the absence of a speedometer;[120] whether she thought she was driving to conditions;[121] how she used a speedometer when driving;[122] what she considered to be a safe speed to negotiate a bend on a gravel road;[123] and that the accident could have been caused by many factors (albeit not identified).[124] This cross‑examination put the appellant on notice that the role played by speed in the accident; the appellant's evidence regarding her use of a speedometer when driving; and the question of whether 40 kph was a safe speed to negotiate the corner were in issue and were being challenged.
[120] Trial ts 352 - 354.
[121] Trial ts 354 - 355.
[122] Trial ts 354 - 355.
[123] Trial ts 355.
[124] Trial ts 355.

Sixthly, evidence of the appellant as to her general practice when driving was adduced in re-examination.[125] This is not only consistent with the issue of factual causation (including the role played by speed in the accident and the role played by a speedometer in driving) being in issue between the parties, but it also means that it was not possible, in any event, for the respondent's counsel to cross‑examine the appellant on her evidence as to her general practice when driving. In these circumstances, it cannot be said that there has been any substantial unfairness to the appellant in relation to this aspect of her evidence.
[125] Trial ts 359 - 361.
Seventhly, a trial judge is not required to accept the evidence of a witness who is not cross‑examined on a particular fact or issue. Rather, the lack of cross‑examination is merely a relevant factor to be evaluated and weighed, together with all other relevant factors in the case, in deciding whether to accept or reject the witness's evidence.[126]
[126] Moyes v Ensco Australia Pty Ltd [2022] WASCA 104 [104]; Burke v Corruption and Crime Commission [2012] WASCA 49 [192].
Eighthly, as outlined in the authorities referred to earlier in these reasons, a decision‑maker is not usually required to disclose to a person to whom procedural fairness must be accorded the decision‑maker's mental processes, provisional views or proposed conclusions before a final decision is made.
Ninthly, trial counsel for the respondent made oral closing submissions regarding causation which included addressing whether the appellant's evidence in relation to causation should be accepted. For example, the respondent made a submission that no weight should be given to the appellant's evidence that 40 kph was a safe speed to negotiate the corner,[127] and that given the lack of evidence it was 'pure supposition' that had the appellant been travelling slower she would have been able to bring the car under control.[128] The respondent also challenged the appellant's evidence that she would drive around a corner at 40 kph.[129] These submissions put the appellant on notice that the appellant's evidence was challenged.
[127] Trial ts 516 - 517.
[128] Trial ts 518.
[129] Trial ts 613.
In relation to the appellant's evidence as to her general or usual practice when driving a car with a working speedometer, the following exchange took place between counsel for the respondent and the learned trial judge:[130]
[130] Trial ts 513 - 515.
PETRUSA DCJ: Right. Well, what do you say to the proposition that knowing your speed with accuracy, given a working speedometer, is one piece of information that any driver utilises, together with a whole raft of other information, road surface, type of road, including weather. It's a highway, a byway, a suburban street, a gravel road, a four-wheel drive track. The amount of traffic on the road, the weather conditions, the age and nature of the vehicle that you're driving. Whether you're driving a mini minor or a 10-tonne truck, you know, with two trailers on the back.
…
PETRUSA DCJ: Or a regular sedan with a box trailer, for example. So knowing your speed with some precision is a piece of information, together with a raft of information, that enables a driver to drive safely, or drive to the conditions. Because all those pieces of information feed into the decision-making. What do you say to that proposition?
CLYNE, MR: Yes.
PETRUSA DCJ: And, therefore, by depriving the driver of [that] it feeds into the safety or un-roadworthiness of the vehicle? What do you say to that proposition?
CLYNE, MR: Well, my answer is that it really depends on driving to the conditions, how you feel because this young lady was on a road were 110 kilometres an hour was permitted on the only evidence. Would it be right to say, 'Well, I was looking at my speedo. I was only doing 100'. It's not the actual speed which is in any way relevant to the way in which the vehicle is handling or road conditions and whether you start - you've got to feel the vehicle regardless of the speedo.
…
CLYNE, MR: So you can be driving along at say 80 looking at your speedo and you come to a sweeping right-hand bend. You don't say, 'Well, I'd better slow down to 70' because you're concentrating on the road. You have the feel of the car, the vehicle on the road, corrugations, whether there are humps, flatter in the middle or flatter on the sides, all of those things. You don't have time to look at your speedo and gauge your safety by simply looking at your speedo particularly if you're under the speed limit.
The real use of a speedometer in most cases is to make sure you don't get a ticket. When you're up in 110 and you know, 'Well, this feels good. I can do 130 in this car', but don't. The vehicle is safe on the straight road but the speedo does not impact about how you gauge the safety of your driving. And that's what's critical in this case in terms of the impact on the speedometer and whether there's been a breach.
PETRUSA DCJ: Well, I suppose the example about that may well be driving on a straight stretch of highway at midday you can comfortably do 110 or 130 and be safely driving. Driving that same stretch of road on dusk when there are kangaroos about may be considered to be unsafe.
Trial counsel for the respondent also stated:[131]
And the statement that she would have driven at 25 miles per hour around that bend otherwise with respect no weight can be given to that at best. So that's we - this is really - causation is where this plaintiff has to fail.
[131] Trial ts 516 ‑ 517.
The point was taken up later in the closing submissions when trial counsel for the respondent was asked by the learned trial judge to respond to the appellant's case that she would have driven at a slower pace around the corner if she had been able to know her speed with some precision:[132]
And so unless you can get past that point and we say there is no evidence with respect that your Honour could possibly get to that conclusion[.] … [C]an [you] accept her, the plaintiff saying, 'If I'd known my speed I may have driven more slowly' but we say the speedometer really doesn't go to that because that in some ways is nonsensical. If you're driving according to the road conditions she would not know whether 80 or 60 was going to make a difference to the way that the vehicle was going.
[132] Trial ts 610.
Trial counsel for the respondent also asked, rhetorically, '[w]as she really going to drive along that road 40 km ‑ 25 miles per hour'.[133]
[133] Trial ts 613.
Whilst these exchanges were between the trial judge and trial counsel for the respondent, and the exchanges do not address all the 12 factors later referred to in [144] of the Primary Decision, the exchanges nonetheless put the appellant on notice of the substance of the respondent's case in relation to the role of a speedometer when driving a car. The submissions also put the appellant on notice that the respondent challenged the appellant's evidence as to her general practice when driving and the role played by a speedometer. Accordingly, the appellant was given notice of, and an opportunity to address, these issues and it cannot therefore be said that the learned trial judge's emphasis in [143] - [146] of the Primary Decision could not have reasonably been anticipated by the appellant.
Finally, the appellant relies on the decision of Kuhl v Zurich Financial Services[134] in support of her submissions on grounds 1 and 2, in particular in asserting a breach of procedural fairness. Kuhl concerned an action in negligence commenced by Mr Kuhl arising out of injuries he suffered on a work site when his left arm was sucked into a vacuum hose after the hose was passed to him by another person. Mr Kuhl gave evidence as to how the accident occurred and was not cross‑examined on this evidence. The trial judge did not accept aspects of the evidence given by Mr Kuhl, finding that his evidence was 'less than expansive' and Mr Kuhl was 'reluctant to say precisely what happened'.[135]
[134] Kuhl v Zurich Financial Services [2021] HCA 11; (2021) 243 CLR 361.
[135] Kuhl v Zurich Financial Services Australia Ltd [2009] WADC 4 [30] ‑ [31].
The majority characterised these observations by the trial judge as a finding to the effect that Mr Kuhl had deliberately suppressed the truth about the circumstances of the accident. The majority held that this finding constituted an error in the absence of reasons explaining the finding, and in the absence of any cross‑examination or submissions by the defendant, or any questioning by the trial judge, to that effect such that Mr Kuhl had been denied an opportunity to be heard on the findings.[136]
[136] Kuhl v Zurich Financial Services [2021] HCA 11; (2021) 243 CLR 361 [67] - [76] (Heydon, Crennan & Bell JJ).
Kuhl is distinguishable from the present case as it concerned an adverse credibility finding regarding a plaintiff/witness in circumstances where there had been no cross‑examination or questioning to that effect. In the present case, there was no such negative finding regarding the appellant's credibility. The learned trial judge in the present case also provided reasons for the findings of fact reached and there was cross‑examination and submissions on the appellant's evidence as given.
For these reasons, in all the circumstances, we reject the appellant's contention that there has been a failure to comply with the rule in Browne v Dunn. We also reject the appellant's contention that the learned trial judge failed to accord the appellant procedural fairness. Grounds 1 and 2 fail.

Ground 3 - disposition

Overview of appellant's case

As clarified by senior counsel in oral submissions, ground 3 alleges that, leaving aside whether the rule in Browne v Dunnwas complied with and whether the appellant was afforded procedural fairness, the conclusion reached by the trial judge in relation to factual causation was illogical or unreasonable having regard to the matters in grounds 3(a), 3(b) and 3(c). Specifically, the appellant challenges the learned trial judge's conclusion that her Honour was not satisfied that the appellant 'would have driven any differently' had the car contained a working speedometer.[137]
[137] Primary Decision [167].
In essence, the appellant submits that once the learned trial judge's findings regarding the existence and breach of a duty of care are combined with the finding that the appellant was driving too fast to safely negotiate the right-hand bend, when regard is had to the matters in grounds 3(a), 3(b) and 3(c), the only conclusion available was that on the balance of probabilities the absence of a working speedometer was a contributing factor to the car travelling too fast to safely navigate the corner resulting in the crash.[138]

Reasoning process of learned trial judge

[138] WAB 15: appellant's submissions [48]; appeal ts 13.

When considering whether the trial judge's conclusion in relation to factual causation at [167] of the Primary Decision was unreasonable, illogical or irrational, it is necessary to have regard to the reasoning process as a whole. The reasons of the learned trial judge are summarised earlier in these reasons. By way of overview the learned trial judge engaged in the following reasoning process:
(1)the learned trial judge accepted that it was more likely than not that the cause of the accident was that the appellant was driving too fast to maintain control of the car as it negotiated the right-hand bend on Foley Road;[139]
[139] Primary Decision [120] and [164].
(2)there was no reliable estimate of the speed of the car before or during the accident;[140]
[140] Primary Decision [131].
(3)there was no expert evidence as to the cause of the accident; what speed the car may have been travelling; what minimum speed was necessary before sliding on the road could be expected; or what was a safe speed to negotiate the right‑hand bend;[141]
[141] Primary Decision [115] and [131].
(4)there was no information about the appellant's driving experience, save that the appellant had a manual driver's licence, was 28 years old, had driven the car in question on a number of occasions during the four weeks at which she had been at the respondent's hostel, had driven the car on gravel roads (including on at least one occasion on Foley Road) and had worked at Mr Saunders' farm before the day of the accident;[142]
[142] Primary Decision [21], [24], [132].
(5)the appellant's evidence was that she would judge her speed in the car (in the absence of a speedometer) by asking the passengers what her speed was. The learned trial judge did not accept this aspect of the appellant's evidence, finding it extraordinary for a driver to consult passengers about the speed of the car (as the driver could have no confidence that their assessment was any better and passengers do not necessarily pay any attention to the road) and in light of the absence of any supporting evidence from the other witnesses who had been passengers in the car when the appellant had been driving;[143]
[143] Primary Decision [137] - [140].
(6)the learned trial judge held that she could not place any reliance on the appellant's evidence that 40 kph was the speed required to safely negotiate the bend, as the appellant was not an expert, and her Honour was not provided with meaningful information in relation to, among other things, the condition of the road and the nature of the bend necessary to assess what was a safe speed;[144]
[144] Primary Decision [153] - [154].
(7)the appellant gave evidence as to her usual practice when driving, and how she would use the speedometer to slow down to 40 kph when negotiating a corner. This evidence was not accepted by the learned trial judge;[145]
(8)the appellant's evidence was that on the day of the accident she believed she was driving safely to the conditions and that she was driving at a safe speed that took into account the age of the car and the type of road;[146]
(9)there were no recommended speed signs on this part of Foley Road and there was no suggestion the appellant was exceeding the speed limit;[147]
(10)a safe driving speed can only be assessed by reference to the prevailing road and environmental conditions and the appellant's driving experience and familiarity with the roads;[148]
(11)the learned trial judge did not accept the appellant's submission that support for her case could be found in the differences between the speed estimated by Mr Lich (70 – 80 kph) and the speed the appellant said she was endeavouring to drive at because the learned trial judge did not accept that:[149]
(a)Mr Lich's estimates of the appellant's speed were accurate; or
(b)the appellant's estimate of what was a safe speed to negotiate the bend (being 40 kph) was accurate;
(12)even if the evidence of the appellant and Mr Lich as to speed was accepted, the learned trial judge would not have found any differently because her Honour did not accept that the appellant could have so misjudged her speed so that, rather than travelling at 40 – 60 kph, the appellant was instead travelling at 70 ‑ 80 kph.[150]
[145] Primary Decision [141] - [146].
[146] Primary Decision [147].
[147] Primary Decision [148].
[148] Primary decision [148].
[149] Primary Decision [150] - [154].
[150] Primary Decision [155] - [156].
Having regard to all these matters, the learned trial judge concluded that she could not be satisfied that the appellant would have driven at a different speed if the appellant had available precise knowledge of her speed provided by a working speedometer, and was therefore not satisfied that the absence of a working speedometer caused or materially contributed to the accident.[151]
[151] Primary Decision [157] and [167].
There is nothing unreasonable, illogical or irrational in this reasoning process or the outcome reached by the learned trial judge. Further, for the reasons set out below, the specific matters raised by the appellant in the ground of appeal (either separately or in combination) do not alter this conclusion.
Ground 3(a) relies on the appellant's evidence in support of the ground of appeal. Ground 3(a) as drafted again proceeds on the basis that the appellant's evidence was that she would have used a working speedometer to set a speed of 40 kph to travel through the corner on Foley Road.[152] As previously outlined in these reasons, evidence of what the appellant would have done absent the tortfeasor's negligence is inadmissible for the purposes of establishing causation, and therefore the matters raised in ground 3(a) as drafted do not assist the appellant.
[152] See also WAB 15: appellant's submissions [48].
In oral submissions senior counsel for the appellant sought to rely on the appellant's evidence as given, being evidence as to her general practice when driving and her evidence as to a safe speed to negotiate the right‑hand bend.[153] This is evidence from which the trial judge may draw an inference as to what would have occurred if the car had a working speedometer. However, the learned trial judge did not accept this evidence for the reasons already canvassed in some detail. Putting to one side the challenges to these findings in grounds 1 and 2, there is nothing illogical, irrational or unreasonable in the reasoning process or the outcome reached by the learned trial judge in relation to these aspects of the appellant's evidence. A court is not required to accept the evidence of a witness, and the learned trial judge articulated logical and rational reasons why her Honour did not accept these aspects of the appellant's evidence.
[153] Appeal ts 4, 11, 22.
In ground 3(b), the appellant relies on the evidence of Mr Lich in his statements as to his estimate of the speed at which the appellant was driving the car prior to the accident in support of her case. The learned trial judge gave no weight to this aspect of Mr Lich's evidence for the reasons that he was travelling in the rear of the car; was largely distracted by looking at his phone; and his driving experience was unknown.[154]
[154] Primary Decision [116] and [152].
Her Honour did not, as submitted in oral submissions, disregard Mr Lich's evidence for the reason that people tend to overestimate their speed, or that it is notorious that people get speed estimates wrong.[155] The reference by the learned trial judge to people overestimating their speed was made in the context of her Honour explaining why, even if she accepted Mr Lich's evidence, her Honour did not accept that the appellant could have so misjudged her speed so as to be travelling around the right‑hand bend at the speed estimated by Mr Lich.[156]
[155] Appeal ts 10.
[156] Primary Decision [155] - [156].
The appellant submits that Mr Lich's evidence should not have been disregarded by the learned trial judge in circumstances where it was tendered by consent.[157] Again, a court is not required to accept the evidence of a witness. The matters referred to by the learned trial judge are all relevant matters going to the assessment of the weight which should be given to Mr Lich's evidence. We would also observe that in each of his statements, Mr Lich indicated his uncertainty as to the appellant's speed. In his first statement Mr Lich stated that he did not know the speed the car was travelling at, 'because [he couldn't] see the speedo',[158] and in his second statement Mr Lich stated that it was very difficult to judge speed in the vehicle.[159] In all the circumstances there is nothing illogical, irrational or unreasonable in the learned trial judge's reasoning process or conclusion in relation to this aspect of Mr Lich's evidence.
[157] Appeal ts 10.
[158] GAB 9 [22].
[159] GAB 14, 16 - 17.
However, even if the evidence of Mr Lich is accepted, all it does is provide an estimate of the speed the appellant was driving immediately before the accident. It does not address the question of what the appellant would have done if the speedometer had been working or provide any assistance as to what a safe speed would have been to negotiate the right-hand bend.

Finally, ground 3(c) relies on the finding of the learned trial judge that the accident resulted from the appellant travelling too fast to maintain control of the car as she negotiated the right‑hand bend. However, it is not sufficient, for the purposes of establishing factual causation, to merely establish the cause of the accident. For the purposes of s 5C(3) of the Civil Liability Act it is necessary to establish that but for the negligence of the appellant the accident would not have occurred. The fact that the appellant was driving too fast does not mean that it is inevitable that the plaintiff has satisfied the statutory test for causation. It is still necessary for the appellant to establish what the appellant would have done if the car contained a working speedometer. Whilst it is a relevant starting point in the inquiry, it does not address the critical question and its existence does not establish that the subsequent reasoning process or the conclusion of the learned trial judge is illogical, irrational or unreasonable.
In these circumstances, ground 3 has no merit and must be dismissed.

Ground 4 - disposition

Ground 4, which alleges an error of fact on the part of the learned trial judge in failing to infer that the appellant would have driven at a slower speed had there been a working speedometer in the car, is dependent upon the appellant being successful on one or more of grounds 1 ‑ 3. As the appellant has been unsuccessful on these grounds, ground 4 is likewise not established and is dismissed.

Notice of contention

In light of our findings regarding grounds 1 ‑ 3 of the appeal, it is not necessary to consider the matters raised in the notice of contention.

Conclusion

For these reasons we would dismiss the appeal. We will hear further from the parties as to the appropriate orders, including as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AA
Associate to the Honourable Justice Seaward
7 MARCH 2024