Farrell v Farrell

[2009] NSWSC 1122

CITATION:	FARRELL v FARRELL [2009] NSWSC 1122
HEARING DATE(S):	19, 20 and 21 October 2009
JUDGMENT DATE :	21 October 2009
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	The defence of contributory negligence fails. I order the defendant to pay the plaintiff's costs of the hearing of the first two days (19 and 20 October 2009) in relation to the issue of contributory negligence and costs otherwise of and incidental to the defence of contributory negligence
CATCHWORDS:	TORTS - negligence - contributory negligence – defendant failed to establish the defence of contributory negligence
LEGISLATION CITED:	Evidence Act 1995 Motor Accidents Act 1988
CASES CITED:	Commercial Union Assurance Company of Australia v Ferrcom Pty Limited (1991) 22 NSWLR 389 Cook v Cook (1986) 162 CLR 376 Ellerman Lines Limited v H & G Grayson Limited [1919] 2 KB 514 Flounders v Millar [2007] NSWCA 238 Freeman v Health Insurance Commission (1997) 78 FCR 91 Gardiner v Motor Vehicle Insurance Trust (1955) 95 CLR 120 Imbree v McNeilly (2008) 82 ALJR 1374 Jones v Dunkel (1959) 101 CLR 298 Joslyn v Berryman (2003) 214 CLR 552 Lexton v Vines (1952) 85 CLR 352 Prentice v Cummins (No 6) (2003) 203 ALR 449 Symons v Stacey (1922) 30 CLR 169 White Industries (Qld) Pty Limited v Flower & Hart (a firm) (1998) 156 ALR 169
PARTIES:	Ian Peter FARRELL v Caroline FARRELL
FILE NUMBER(S):	SC No 20422 of 2008
COUNSEL:	P: W Fitzsimmons/N Ghabar D: K Rewell SC/B Kelleher
SOLICITORS:	P: Haywards D: T L Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

WEDNESDAY 21 OCTOBER 2009

No 20422 of 2008

IAN PETER FARRELL v CAROLINE FARRELL

JUDGMENT

1 HIS HONOUR:

(1) INTRODUCTION

2 These proceedings were commenced by way of statement of claim filed on 2 October 2008 in respect of injuries sustained by the plaintiff, Ian Peter Farrell, in a motor vehicle accident which, at the time of the accident, was driven by his wife. The cause of action pleaded in the statement of claim was framed in negligence. The defendant has admitted primary liability to the plaintiff.

(2) THE DEFENCE OF CONTRIBUTORY NEGLIGENCE

3 The defendant filed a defence on 17 December 2008 in which a defence of contributory negligence was pleaded.

4 The defence was, in due course, amended and leave was granted to file an amended defence on 19 October 2009. In it, the defence of contributory negligence is in the following terms:-

“1. The Defendant does not admit the Plaintiff is entitled to the relief sought detailed under ‘Relief Claimed’ in the Plaintiff’s Statement of Claim.
2. The Defendant admits that she was the driver of the vehicle in which the Plaintiff was a passenger at the time of his injury.
3. The Defendant admits that she breached her duty of care.
4. The Defendant admits that the Plaintiff was injured partly as a result of the Defendant’s breach of duty of care; however the particulars of injury, loss and damage are not admitted.
5. The Defendant asserts that the Plaintiff’s said injury, loss and damage was caused, or contributed to, by the Plaintiff’s own contributory negligence.
6. Particulars of Negligence
(i) The Plaintiff voluntarily travelled as a passenger in a vehicle driven by the Defendant at a speed which was excessive, having regard to the road conditions.
(ii) The Plaintiff voluntarily travelled as a passenger in a vehicle driven by the Defendant, when the Plaintiff knew, or ought to have known, that the Defendant’s ability to drive the vehicle was impaired by fatigue and loss of concentration.
(iii) The Plaintiff voluntarily travelled as a passenger in a vehicle driven by the Defendant, when the Plaintiff knew, or ought to have known, that the Defendant was inexperienced in the road conditions, namely that the road was narrow and undulating, with soft edges.
(iv) Failing to warn the Defendant that:
a. Her speed was excessive;
b. She was showing signs of fatigue and loss concentration
c. She was drifting towards the edge of the sealed road surface; and
d. Once partly off the sealed surface, she should steer gradually, not sharply, back onto the sealed surface.
7. The Defendant denies that the Plaintiff is entitled to interest pursuant to s.137 of the Motor Accidents Compensation Act 1999.
8. The Defendant relies upon s.83(5) of the Motor Accidents Compensation Act 1999.”

5 At the commencement of the hearing on 19 October 2009, following discussions with counsel, it was agreed that the defence of contributory negligence would be heard before evidence was called in relation to damages. I will shortly refer to certain of the evidence called in that respect.

(3) FACTUAL BACKGROUND

6 The plaintiff’s accident occurred at approximately 11.50 am on Sunday 18 December 2005. It took place on a road known as John Renshaw Parkway, which is a signposted tourist alternative route to the Newell Highway between Tooraweenah and Coonabarabran, which runs through the Warrumbungle National Park.

7 The evidence was that Mr and Mrs Farrell had spent the previous evening at Dubbo and had set off that morning on the journey which terminated in the accident.

8 In evidence, Mrs Farrell agreed that she was well rested at the beginning of the journey and, to her observations, so was her husband. They drove from Dubbo to somewhere around Gilgandra. Mr Farrell was driving in that period.

9 At Gilgandra, they changed positions as driver and passenger. Mrs Farrell took over the driving of the vehicle. She could not recall precisely at what point that occurred. She confirmed that during the remaining part of the journey they were well rested, alert and were enjoying the trip. During the journey to Gilgandra they had been conversing with one another.

10 Mrs Farrell drove the Nissan Patrol in an easterly direction along John Renshaw Parkway. The accident occurred approximately three kilometres from the western edge of the Warrumbungle National Park or approximately five and a half kilometres east of the Tooraweenah/Coonamble Road intersection.

11 In the vicinity of the accident location, John Renshaw Parkway follows an east/west alignment, with east being towards Coonabarabran and west being towards Coonamble/Tooraweenah. Just prior to the accident, the vehicle was travelling in an easterly direction.

12 The portion of roadway leading to the point of the accident was a sealed portion of the James Renshaw Parkway. It operated as a two-way sealed road pavement which measured a distance of about 7.2 metres wide between pavement edges. There were no edge line markings at the edges of the bitumen surface. The road was constructed with a crowned cross-section rising to a crest. It had a cross slope approximately four degrees in the east-bound lane and about two degrees in the west bound lane.

13 After passing the crest, the roadway descends towards the east to about four to five degrees for approximately 280 metres, after which it flattens out.

14 A number of Google maps (Exhibit A) were tendered in evidence. They show the relevant roadways and locations. Also tendered was a diagram prepared by Constable Deans (Exhibit 3) and a bundle of colour photographs (Exhibit 4).

15 Both the plaintiff and the defendant have engaged experts. The plaintiff’s expert, Mr Grant Johnson, provided a report dated 17 August 2009 (Exhibit B) and a supplementary report dated 13 October 2009 (Exhibit C). The defendant relied upon the report of Mr Keramidas dated 14 September 2009 (Exhibit 1).

(4) THE EVIDENCE

(a) The defendant’s statement to police

16 Mrs Farrell was interviewed by police on 21 February 2006. She had been admitted to hospital herself in respect of injuries that she sustained in the accident. A copy of the statement as recorded by police was tendered in evidence (Exhibit 5). The statement was in the following terms;-

“Q. Were you the driver of Motor Vehicle NSW registered XLF-327 a blue Nissan Patrol when I was involved in a motor vehicle accident on a road near the base of Warrumbungle National Park about 11.50 am on the 18th December 2005?
A. Yes that is correct.
Q Can you tell me what happened?
A. My husband and I had stayed overnight at the Dubbo Zoo. I’m not sure what time we left but it may have been between 8.30 am and 9.00 am. We were headed towards Dubbo as we had a booking at a motel for the night. My husband Peter drove from Dubbo first. I’m not sure when exactly we swapped drivers, but it would have been nearly a couple of hours. It was our normal practice to swap every couple of hours. We decided to stop in at the Warrumbungle National Park and have a look around, so that we would arrive in Cobar about dinnertime. I think I turned left and then turned right to drive into the National Park. The road was a single land bitumen road. I can’t remember how long it was before I came to what appeared to be a crest in the road, I couldn’t determine if there was an approaching vehicle, so I moved to the left hand side of road. The left hand wheels of the car got into the dirt and it felt like the car was being pulled to the left. I turned the wheel to the right to get the car onto the road and then it rolled I don’t know how many times it rolled. The car came to a stop lying on the driver side. I heard the engine switch off shortly after it stopped rolling. My husband was suspended above me and both of us were conscious.
I was on the floor between the pedals and steering wheel. I tried to release my husband from his seatbelt but knew I had to move, as he would fall on top of me. I moved myself as best as I could and managed to release my husband’s seatbelt. He fell down on me when I released him and we waited until someone came by to help. It seemed to be about twenty minutes before someone came.
…
Q. What speed were you doing at the time of the accident?
A. I set the cruise control to 100kms per hour, which was the signposted speed in the park.
Q. Where did you see the speed sign?
A. I can’t remember where but I always look out for them.
Q. When the wheel on the vehicle went onto the gravel did you brake?
A. I think so that’s the best I can do.
Q. Were there any other vehicles coming the other way?
A. No, but I didn’t know at the time.
Q. What injuries did you sustain as a result of the accident?
A. Broken nose, fractured wrist, bruising to upper leg and arm, partial dislocation of right shoulder from the seatbelt.”

(b) Evidence of Senior Sergeant Unicomb

17 Mr K Rewell SC, who appeared on behalf of the defendant, called Senior Sergeant Unicomb who attended the scene of the accident and prepared a police statement dated 23 December 2005. He made a written statement dated 20 December 2005 which became Exhibit 2.

(i) Investigations

18 He referred to the diagram prepared by Constable Deans which contained details of measurements (Exhibit 3). The diagram (Exhibit 3) depicted a length of roadway measuring 110 metres representing the distance between the point the vehicle’s nearside wheels left the bitumen surface and the position at which the vehicle re-entered the road. There was then a further distance marked on the diagram of 50 metres marking the points between where the vehicle swerved back onto the bitumen surface and then turning to the left, leaving yaw marks. Senior Sergeant Unicomb agreed that Constable Deans appeared to have begun his measured markings from the point where a track appears on the edge of the roadway, namely, the northern edge of the roadway. He agreed that the 110 metre mark represented that point where the tyre marks returned to the sealed surface.

19 He agreed there was the additional 50 metres to which I have referred which portrayed the “yaw marks” and these extended to where the vehicle finally left the road surface, proceeded through a fence and into a paddock.

20 He said that there were no earlier marks on the roadway to indicate that the wheels of the vehicle had locked up as may occur during a braking manoeuvre.

(ii) Photographs of the accident scene

21 He identified, by reference to photographs 2 and 3 of Exhibit 4 and marked by an arrow, tyre marks on the dirt shoulder of the road. The point of the arrow in photograph 3 he said was the approximate area where both wheels of the vehicle were momentarily off the bitumen.

22 He was taken to photograph 5 which, again, has an arrow marking where the tyre marks returned to the bitumen surface. When asked as to the angle at which the tyre marks left the road surface in the first place, he replied, “I would say a medium angle. Not extremely severe” (transcript, p.31). This contrasts with the opinion of Mr Keramidas for the defendant at p.15 of Exhibit 1 that there was a shallow departure angle of less than 1.5 degrees.

23 Photograph 6 indicates, by highlighted yellow markings, the point at which the vehicle, at least temporarily, regained the bitumen surface of the road.

24 Senior Sergeant Unicomb was asked about the crest in the road referred to in the defendant’s statement to police. He said that the crest was some distance west of where the marks on the dirt edge indicate the vehicle having first left the road. He said that the crest was “some distance” from the point the vehicle left the roadway.

25 Photograph 8, which contains an “X” shows the area where the vehicle began to yaw, being the point at which the rear wheels begin to track outside the front wheel of the vehicle. He said that indicated a rapid change of direction.

26 Photograph 13, he said, showed tyre marks leading to the point where the vehicle left the road and ended up in the nearby paddock.

(iii) Senior Sergeant Unicomb’s opinion

27 In Sergeant Unicomb’s undated statement (Exhibit 2), he calculated a speed range for the vehicle of between 95 kilometres per hour to 97 kilometres per hour. He said, in this respect, that he was attempting to measure the likely speed of the vehicle when it regained the road surface, that is, up to the time it began to yaw. He used the yaw marks for the purposes of deriving that calculation. This aspect is dealt with in greater detail in paragraph 8 of his statement. He said that the area of the roadway in question was signposted as a maximum speed of 100 kilometres per hour. He also stated in his statement:-

“Given a perception reaction time of 1.5 to 2 seconds, it is estimated that the driver would not have had the opportunity of applying the brakes until, at the very earliest, when the vehicle was about to leave the roadway. The vehicle travelled a further distance of some 50 metres after leaving the roadway before coming to rest.

28 Senior Sergeant Unicomb’s statement also recorded the following:-

“11. Evidence available at the scene suggests that the vehicle was travelling in a easterly direction at a speed of between 94 K/hour and 97 K/hour. The vehicle was then driven gradually off the roadway over a distance of 110 metres. At that point, a sudden and severe steering input to the right has caused the vehicle to begin a yaw to the left and then back to the right. The vehicle has then left the roadway becoming airborne and rotating at least once and colliding with the ground on two occasions before colliding with a large fence post and coming to rest in its offside.”

29 Senior Sergeant Unicomb confirmed that the vehicle would have been partly or wholly off the bitumen roadway before regaining it for a distance of 110 metres in total. For a part of that distance, only the nearside wheels were off the roadway. For a portion of the distance, all four wheels were off the bitumen. He indicated by reference to photograph 3 of Exhibit 4 that, at the point near the arrowed area where the wider section of the sealed surface finishes, was the area where both tyres were actually off the roadway.

30 He said he carried out a cursory mechanical examination of the vehicle and examined the tyres. There was no suggestion of any mechanical defect nor evidence of a tyre blow out or similar problem that could have caused the accident.

31 Mrs Farrell’s said in her statement to police that she set the cruise control to 100 kilometres per hour and that that was her estimate of speed prior to the vehicle leaving the bitumen. Senior Sergeant Unicomb said that her statement in that respect was “consistent with my estimation” (transcript, p.38).

32 He also agreed that the movement of the vehicle from its furthest most point when it was off the bitumen roadway and then to the point of it re-entering the bitumen was consistent with steering input from the driver (transcript, p.38). It was put to him by Mr Fitzsimmons (transcript, p.38):-

“Q. Indeed, the evidence is consistent with the driver having control of the vehicle to the extent that she has used driving input to steer the vehicle back on to the roadway, correct?
A. That's correct.”

33 He also agreed that the first point at which there was loss of control of the vehicle was at the point of the first yaw mark identified in the photographs (transcript, pp.38 to 39).

34 In summary, he agreed that the physical evidence confirmed the following matters:-

• The near side tyre entered the dirt shoulder of the roadway in the range of 94 to 97 kilometres per hour.

• The nearside tyres continued to proceed off the bitumen surface and onto the gravel by way of a “gradual entry” .

• There was steering input in which the defendant brought the vehicle back onto the bitumen.

• Following re-entry onto the bitumen, the driver had control of the vehicle.

• The point at which the vehicle went out of control was the point where the sudden steering input resulted in the yaw mark.

• At the point at which the loss of control occurred the vehicle was entirely back on the bitumen roadway.

35 In re-examination, Senior Sergeant Unicomb said that, the fact that one or more of the wheels of the vehicle travelled along the unsealed edging of the roadway would have very slight effect on the deceleration of the vehicle.

(c) The evidence of Mrs Farrell

36 Mrs Farrell was called to give evidence by Mr Rewell in the defendant’s case. He clarified that she and her husband had stayed overnight in Dubbo and then put to her:-

“Q. Would you agree that you were well-rested that evening?
A. Yes.
Q. And as far as you could observe, your husband was well-rested?
A. Yes.”

37 He elicited evidence that Mr Farrell drove in the initial part of the journey and that, at a later point, she took over the driving. He asked her:-

“Q. Had you had much experience in that type of road condition before?
A. A tarmac road with dirt?
Q. Yes?
A. Yes.
Q. Had you had much experience in dealing with driving onto the dirt on the sides of the road as distinct from remaining on the road surface?
A. No.
Q. Had you had any experience in off-road driving, that is, driving on surfaces which are not sealed?
A. Yes.
Q. How much experience had you had?
A. I had had every weekend for six months.
Q. And where was that experience?
A. Our place in the country.
Q. At Laguna?
A. Yes.
Q. What type of road edges or roadway were you driving along there?
A. Dirt.”

38 Although the transcript records that the length of driveway to which she referred as unsealed at Laguna was 1.2 kilometres, in fact, its length was about two kilometres.

39 The defendant stated in her evidence in chief that she believed she was travelling just under 100 kilometres per hour because she set the cruise control and always set it just under the speed limit.

40 She said she remembered approaching the crest in the roadway in question and moved to the left hand side of the roadway. She said that, when she drove and could see no-one coming from the other direction, it was her practice to move closer to the centre of the roadway.

41 She confirmed that, as she came to the crest of the road, she had moved to the left. She had no recollection as to what she could see ahead apart from coming up to the crest.

42 She said that she recalled the wheels of her vehicle leaving the sealed surface and that this occurred before she reached the crest, although she could not provide an estimate as to exactly at what point. She said that she then “attempted to get the car back onto the road” (transcript, p.52). I note, in this respect, that in the account given by the defendant to police, she stated “I couldn’t determine if there was an approaching vehicle, so I moved to the left hand side of road. The left hand wheels of the car got into the dirt and it felt like the car was being pulled to the left”.

43 She could not recall whether she heard the car vibrate when it left the sealed surface and did not know whether she heard anything different in terms of road noise when the wheels were off the bitumen. She could not recall how long it was after the first wheel left the road surface that she attempted to regain the sealed surface.

44 Mrs Farrell was not asked questions in chief as to what her husband was doing at the time the vehicle commenced to leave the bitumen. She was not asked whether he said anything to her from that point. Mr Rewell said such questions were not put to her as her evidence of the wheels of the vehicle moving off the bitumen before the crest in the roadway was shown by the physical evidence to be incorrect.

45 In Commercial Union Assurance Company of Australia v Ferrcom Pty Limited (1991) 22 NSWLR 389 at 418, Handley JA referred to the position where no attempt was made to prove by direct evidence certain facts. His Honour, in that case, noted that no relevant questions were asked of a particular witness and that it was appropriate to apply, in those circumstances, the principles of Jones v Dunkel (1959) 101 CLR 298. His Honour then stated:-

“There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However, I can see no reason why those principles should not apply when a party, by failing to examine a witness in chief on some topic, indicates ‘as the most natural inference that the party fears to do so’. This fear is then ‘some evidence’ that such examination in chief ‘would have exposed facts unfavourable to the party’: see Jones v Dunkel (at 320- 321) per Windeyer J …”

46 The Federal Court has since followed the approach of Handley JA in this respect: see Freeman v Health Insurance Commission (1997) 78 FCR 91 at 98-99; White Industries (Qld) Pty Limited v Flower & Hart (a firm) (1998) 156 ALR 169 at 226-229; Prentice v Cummins (No 6) (2003) 203 ALR 449 at [77]-[80].

47 In the course of submissions, Mr Rewell observed that, accepting the expert evidence, Mrs Farrell’s recollection of the wheels having left the bitumen surface before the crest could not be correct and that the relevant markings indicated that the vehicle would have first actually left the bitumen some time after the crest.

48 Whether or not Mrs Farrell was in error in that respect, the fact of the matter is that her evidence discloses that she did recall the events as to the vehicle first leaving the roadway and certain events thereafter.

49 At the centre of the defence of contributory negligence was the proposition that the plaintiff failed to warn his wife in one or other of the several respects (or all of them) set out in amended defence (paragraph 6(iv)(a), (b), (c) and (d)).

50 An important factual issue was raised by the defence as to what Mr Farrell was doing (or not doing) at the relevant time when the vehicle first commenced to leave the roadway. The defence effectively is critical of him not acting or otherwise warning his wife. Mr Rewell put in submissions that it would be unreasonable to conclude that he had dozed off to sleep and that it was more than likely that he was watching the scenery as his wife drove the vehicle. Whatever be the situation in that respect, there is no evidence as to what the plaintiff himself was actually doing at the time the vehicle first left the roadway and thereafter nor is there evidence as to whether he said or did not say anything in that critical period of time.

51 The defendant, of course, has the evidentiary onus to establish, inter alia, the alleged failure to warn, as pleaded. The only person, of course, who could have been in a position to see what the plaintiff was doing (if anything in particular) at the critical time, whether he initiated any action and whether or not he said something by way of warning or not, was the defendant herself. However, the defendant was not asked in chief any questions as to these factual matters in the period from the time the vehicle left the bitumen surface to the time it swerved back onto the roadway and then went out of control.

52 Mr Fitzsimmons of counsel on behalf of the plaintiff submitted that these matters were left to speculation. He also submitted that Mr Keramidas’ observations as to matter such as the departure angle of the vehicle and fatigue were equally based on speculation and not on identified fact.

53 The defendant, having the evidentiary onus in relation to the defence of contributory negligence, including the alleged failure to warn, in my opinion, was required to put to Mrs Farrell that her husband was in the position of seeing what was happening before the vehicle left the roadway, that he did not, as is contended on behalf of the defendant, do anything or say anything by way of warning or otherwise. The failure to do so, in my opinion, attracts the abovementioned principle enunciated by Handley JA and that the inference to which his Honour refers is applicable to the fact finding process required to be applied in the circumstances of the present case.

54 On the subject of the approach speed of the vehicle, Mrs Farrell was asked whether the vehicle could have been travelling at a speeding excess of 99 kilometres per hour. Mrs Farrell replied in the negative.

55 It was put to her that the vehicle might have been travelling as high as 120 kilometres per hour, to which she responded “definitely not, I have always been extremely careful. I have never actually had a speeding ticket and I do not speed” (transcript, p.58).

56 Mr Rewell took Mrs Farrell to her statement to police made on 21 February 2006 and Royal North Shore Hospital. She said that she had not had the opportunity to read the statement in recent times (transcript, p.59).

57 She accepted that her recollection at the time of making the statement was better than it was now.

58 Mr Rewell made application to cross-examine Mrs Farrell on three discrete matters. The application was made pursuant to s.38(1)(a) of the Evidence Act 1995.

59 I delivered separate reasons in relation to that application. Mr Rewell then put to Mrs Farrell by way of cross-examination that her vehicle did not leave the sealed road surface before she reached the crest (transcript, p.81). Mrs Farrell stated that, to the best of her recollection, the position was as she had stated in evidence and to police (transcript, p.81). Mrs Farrell disagreed with the proposition that it was at least 100 metres after the crest when the first wheel left the sealed surface.

60 Mr Rewell then put to Mrs Farrell that at least part of her vehicle was off the sealed road surface for a distance of about 110 metres with which she agreed. It was then put that at least part of her vehicle was off the sealed road surface for a distance of about 100 metres before she made any response at all. Mrs Farrell responded “I heard that in the evidence that was given. It isn’t my recollection, though” (transcript, p.83).

61 In cross-examination, Mrs Farrell gave an account of her experience as a driver. It is unnecessary here to reproduce or refer to the detail of that evidence. It is sufficient to state that her unchallenged evidence was that she, since being first issued with a driver’s licence in South Australia in 1972 or 1973, had driven extensively in this country, in particular, in New South Wales and South Australia, in the United Kingdom, extensively in Europe and in other countries. She said that she had driven on all manner of roads from small country lanes to major motorways.

62 She said that she and her husband often drove to their property at Laguna between June 2005 and the accident stating, “at least two out of three weekends” (transcript, p.90).

63 She stated that during any of the driving she had undertaken over the years when her husband was present as a passenger she had never recalled a situation in which she had lost control of a vehicle whilst driving.

64 When asked whether the subject accident was the first time she had ever been involved in a loss of control incident, she responded “this is the first accident I have ever had, apart from when somebody ran into the back of me”.

(d) The evidence of Mr Farrell

65 Mr Farrell gave evidence that he met his wife in South Australia and married in about 1972. He was transferred to the United Kingdom for work in 1974. He worked in the United Kingdom and his wife worked at a university.

66 In 1976, he was transferred to Germany and they remained in that country for a number of years before moving to Luxembourg.

67 Mr Farrell said that, during the years spent in Europe, he and his wife travelled extensively and drove on all sorts of roads from freeways to winding country roads. He said he and his wife would often share the driving.

68 In 1982, he returned to Australia because of his work and settled in Sydney. In the period between 1982 and the accident, he and his wife often travelled overseas and within Australia. He said that when driving on trips, he and his wife would share the driving. They had a practice of stopping every hour and a half or perhaps two hours to change drivers. He gave evidence that his wife had driven the four wheel drive Toyota vehicle that was involved in the accident over a period of some six months before the accident.

69 Mr Farrell gave evidence as to the activities on the day before the accident, in particular, travelling around the Dubbo Zoo where they spent the night before the accident in what sounded very much like luxury tented accommodation. He said that they had gone on a night tour the night before which finished at 10.00 to 10.30 pm and, on the day of the accident, they had gone on an early morning tour at about 7.00 or 7.30 am. They then had breakfast. He said that their stay there had been restful and “very pleasant”.

70 He said that, after setting off, they drove to Gilgandra where his wife took over the driving. It was clear from his evidence that he did not have a recollection of the lead up to the accident. He recalled passing through a village and his next memory was looking at the side of the car whilst it was rolling.

71 He was asked by Mr Fitzsimmons of counsel:-

“Q. Doing all those driving trips, was there ever an occasion that you can remember where you had any cause for concern in terms of your wife’s ability to control the car, whether it be on a motorway, a country road, dirt road, a sealed road?
A. No …
Q. – in terms of this particular day, from the moment that you set off from Gilgandra with your wife driving, did you have any cause or any reason to be concerned about Caroline’s ability to drive?
A. No
Q. Did you have any concern, bearing in mind what had occurred in the days before, that she would be in any way tired or fatigued or anything else?
A. No.”

72 In cross-examination, Mr Farrell said that he was “alert and fresh” when they changed over the driving in Gilgandra. When asked whether it was his intention to remain alert to his surroundings after they left Gilgandra, Mr Farrell responded, “it was not a deliberate intention”. He added “I was happy to watch the scenery go by”.

73 He was asked in cross-examination about his knowledge of four wheel drive vehicles and, in particular, the fact that they had higher centres of gravity than conventional circumstances and that in certain circumstances they had a greater propensity to overturn. He agreed that he was aware of that fact.

74 When asked whether he knew that when driving in an environment where the road had dirt edges or shoulders the driver should respond quickly, Mr Farrell replied, “No, the driver should respond carefully and gradually”. It was put to him that response should be commenced immediately and he said he did not agree “not necessarily, no”. He added “a gradual response is called for, depending on the conditions”.

75 He later stated that he believed that in the circumstances put to him, there should be “a slow and deliberate return to the roadway” stating that that would be “… the best course of action”. He agreed that acceleration should not take place before the vehicle was able to regain its position on a sealed roadway. He did not agree that a driver should necessarily lift the foot from the accelerator and he did agree “ideally” that a vehicle should return to the roadway at a shallow angle.

76 Mr Farrell was asked about his driving habits and where, in particular, in relation to an unmarked road he would position his vehicle in the “notional” traffic lane. It is unnecessary here to repeat his evidence in that respect, although I have had regard to it.

77 He accepted, when it was put to him, that no matter how skilful a driver may be, he or she could become distracted. If he was a passenger and that occurred and he accepted that it would be appropriate to say something, adding “if I had noticed, yes” (transcript, p.139).

78 He said that, so far as his recollection was concerned, his wife had been driving at a consistent speed but could not recall at what speed.

(e) Expert evidence: Mr Grant Johnston, consulting engineer

79 Mr Johnston, as earlier noted, produced two reports, the first dated 17 August 2009 (Exhibit B) and the second dated 13 October 2009 (Exhibit C). It was impressed by both the detail and nature of his analysis and with his oral evidence.

80 In Exhibit B, Mr Johnston estimated that the application of deceleration rates to the 110 metre distance on the northern shoulder and a final velocity of 94 to 97 kilometres per hour provided a range of an initial velocity of between 100 and 120 kilometres per hour (paragraph 5.26).

81 He stated that, on this approach, the vehicle was probably travelling at or slightly above 100 kilometres per hour, noting that this was not considered either unusual or inherently unsafe in the prevailing geometry.

82 Mr Johnston also observed (paragraph 5.28 of Exhibit B) that based on Mrs Farrell’s statement to police, the movement of the vehicle to the left by Mrs Farrell appeared to have been a deliberate decision to provide additional clearance to any opposing vehicles potentially coming over the vertical crest.

83 Mr Johnston in his supplementary report (p.3) stated that the difference between 100 metres before the crest and 100 metres after the crest accounted for about six seconds of travel. He added:-

“I simply assume that these 6 seconds were accommodated in the period of travelling parallel to the left edge of the roadway prior to the wheels dropping off the edge off the roadway”.

84 In terms of perception/response times, Mr Johnston said that it would be in the order of 0.75 to 2.5 seconds, depending upon aspects of the environment, the driver, the initial state of alertness and the nature of the actual hazard. In a rural environment, he said the reaction times were up to about 2.5 seconds. This was a value adopted by road authorities for the design of rural roads. Mr Keramidas took issue with this opinion, asserting that the reaction time for a passenger in a rural environment, in his estimation, would have been less than 2.5 seconds, at least once his or her attention was drawn to the fact that the vehicle had partly left the roadway.

85 Whilst Mr Keramidas disputed the figure of 2.5 seconds in the circumstances of the case, I was impressed with Mr Johnston’s evidence and the explanation he gave as to why 2.5 seconds was appropriate as a perception/reaction time in this case. I accept his evidence in that respect.

86 Mr Johnston observed (p.4) that a passenger may respond with slower reactions than the driver:-

“… as they are not tasked with any specific aspect of vehicle control and therefore can legitimately travel in a completely relaxed state which is, in effect, the purpose of ‘sharing the driving’ and relaxing the required level of concentration between driving stints. A passenger’s response may, therefore, be much slower than a driver’s as they are not in any way alert to the possibility of a situation arising to which they are required to respond”.

87 He considered that “nearly three seconds” was not inconsistent with what might be expected from a driver in the operating environment in question The passenger would be even less likely to have responded within such a time frame given that they had no specific application to the driving task.

(f) Expert report of William Keramidas

88 The report of Keramidas is dated 14 September 2009. It was not produced as an initiating expert report to support the defence of contributory negligence. It was a response report to Mr Johnston’s first report, , Mr Keramidas observing that he had been instructed on behalf of the defendant “… to review a report prepared by Mr Grant Johnston on behalf of Solicitors acting for Mr Farrell” (p.3).

89 Mr Keramidas said that he reviewed material sent to him, which he identified, and that he assessed Mr Johnston’s report in light of such material. He properly recorded:-

“The reader should note that the present author has not attended at the incident location as part of this review, due to time constraints for the production of this report.” (p.9)

90 It was put to Mr Keramidas in cross-examination:-

“Q. And this is no criticism of you, you are to an extent limited or constricted by, firstly, having not attended the scene at all, correct?
A. Yes, in the absence of someone like Mr Johnston having done so, I would agree that you wouldn't be able to probably make out many findings or conclusions at all.”

91 Mr Keramidas additionally stated that the primary focus of his report was to review the report of Mr Johnston dated 17 August 2009 (p.10).

92 The analysis in Mr Keramidas’ report of 14 September 2009 commences at p.13.

93 In section (4) of his report (Exhibit 1), he dealt with the issues of speed analysis, vehicle approach speed, vehicle’s departure from the roadway and driver response to loss of control.

94 He expressed his agreement with the general process adopted by Mr Johnston in estimating the vehicle’s approach speed, which was based upon police analysis of initial velocity of about 100 to 120 kilometres per hour.

95 In relation to departure from the roadway, he also agreed that the vehicle travelling at or slightly above 100 kilometres per hour should not be considered as inherently unsafe in the prevailing road geometry. He recorded his agreement with Mr Johnston that excessive speed itself was not likely to have been the cause of the initial movement onto the roadway. He accepted also that the defendant’s statement to police whereby the movement to the left appeared to have been “a deliberate decision to provide additional clearance to potential opposing vehicles over the crest”.

96 He contended that Mrs Farrell’s statement to police was inconsistent with objective physical evidence.

97 Mr Keramidas expressed his opinion that there were three realistic causes for a time lapse between the commencement of the drift and attempted corrective action. They were:-

(1) Excessive speed

(2) Impairment

(3) Fatigue.

98 On p.14 of his report, Mr Keramidas stated that, given the defendant had decided to move to the left on approach to the crest, her departure from the roadway should have been some 100 metres before the crest and not 100 plus metres beyond the crest. He added:-

“Indeed, travelling at 100 kilometres per hour (as an example) the driver has travelled for some 3.6 seconds beyond the crest before the vehicle departs the roadway.”

99 He said that this would be inconsistent with the description Mrs Farrell provided police.

100 Finally, Mr Keramidas stated his opinion:-

“The final and most likely cause for the vehicle leaving the roadway would be driver fatigue. Driver fatigue would obviously delay driver response to the circumstances, and, depending on how significantly fatigued the driver was, could certainly explain a 3 second delay or ‘gap’ in driver response. This would be consistent with the driver’s first response [being severe towards the end of the first segment of marks] as well as the second and subsequent heavy overcorrection … If fatigue was a significant factor, it could also explain the discrepancy between the defendant’s description of where her vehicle left the roadway as compared to where it actually left the roadway.”

101 Mr Keramidas went on to state his opinion that the objective physical evidence indicated that driver fatigue was almost certainly the cause of the initial departure from the roadway.

102 The evidence of Mr and Mrs Farrell as to the events before the accident, the distance and time as to their driving, the fact that they changed over driving the vehicle and as to their well-rested and alert condition I accept unreservedly. They both gave evidence in a most straight-forward and unembellished fashion. I accept their evidence on the above matters. There is absolutely no evidence that Mrs Farrell suffered driver fatigue, as Mr Keramidas opined. The evidence is very much to the contrary.

103 In the course of cross-examination, it was put to Mr Keramidas:-

“Q. … The reality of the situation is, is it not, essentially whilst the person is in the passenger seat, it is not expected that essentially they will remain or maintain the same degree of vigilance, focus, concentration that is expected of the driver?
A. That's correct.

Q. And indeed, that would defeat the purpose, would it not, of the whole idea essentially of swapping drivers?
A. Yes, that's right.
…
Q. To the extent there is a swap and to the extent there is an expectation that there be the break, that is fair that the passengers take that break, in other words removes from herself or himself that need to concentrate, to focus on what is occurring on the roadway and the driving conditions?
A. Correct.” (transcript, 20 October 2009, p.107)

104 Later in his evidence, referring to Mrs Farrell, Mr Keramidas fairly conceded that, on the history given in evidence by Mrs Farrell, the journey taken by Mr and Mrs Farrell on the day on question was not a demanding one which would affect a person’s ability to fight fatigue (transcript, p.109). He said that there was no particular demand on the driver in terms of technical complexity such as tight bends or driving through mountains.

105 Mr Keramidas, in his report, confirmed that the decision by Mrs Farrell to move so close to the shoulder of the road so as to depart from the roadway would be a matter of driver judgment in the context of approaching the crest in the roadway when the defendant did not know if there were any oncoming vehicles.

106 Mr Keramidas expressed his opinion that the evidence was inconsistent with the defendant’s account to police in three respects:-

(1) That the defendant’s departure from the roadway should have been 100 metres before the crest and not 100 metres beyond the crest.

(2) The description of the marks on the roadway are consistent with a “shallow” departure from the roadway consistent with a “drift” and not a steering manoeuvre.

(3) That on his analysis, there was no apparent attempt by the driver to attempt corrective action in the 110 metres partly, and then wholly, off-road section indicated on the police diagram, Exhibit 3, as the path taken by the vehicle.

(5) DEFENDANT’S SUBMISSIONS

107 Mr Rewell SC outlined the defendant’s case in relation to its defence of contributory negligence on the first day of the hearing.

108 He commenced with a consideration of what he termed “… the legal duty of a person in the position of the plaintiff …” and this in terms of “his duty to take reasonable care for his own safety” (transcript, p.8).

109 Mr Rewell referred to the statement of principle by McHugh J in Joslyn v Berryman (2003) 214 CLR 552 at [16].

110 Joslyn (supra) was a case involving a question of contributory negligence arising under s.74(2) of the Motor Accidents Act 1988. The plaintiff in that case had been the driver of his own car whilst severely intoxicated. He exchanged places with the defendant who was also intoxicated and allowed her to drive. Soon after that occurred, the defendant lost control of the car on a sharp corner and the plaintiff was severely injured. The plaintiff sued the driver and the municipal council in respect of road signage.

111 The case, accordingly, was a very different one from the present. Mr Rewell emphasised the first sentence made by McHugh J in paragraph [16] which was in the following terms:-

“At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed …”

112 I note that McHugh J went on to refer to affirmative or positive conduct engaged in by a plaintiff in the context of contributory negligence. His Honour, in that respect, stated:-

“… In principle, any fact or circumstance is relevant in determining contributory negligence if it proves, or assists in proving, a reasonably foreseeable risk of injury to the plaintiff in engaging in the conduct that gave rise to the injury suffered …”

113 The defence of contributory negligence in the present case relies essentially, although not entirely, upon the proposition that the plaintiff was guilty of contributory negligence by omission, that is, in particular, in failing to warn his wife, the driver, in the few seconds preceding the vehicle swerving out of control.

114 In his opening submissions, Mr Rewell referred to two particular aspects. The first was said to be the speed of the vehicle, the contention being that the vehicle was driven by the defendant “… with the plaintiff’s acquiescence at a speed which was excessive, having regard to the road conditions and circumstances” (transcript, 19 October 2009, p.8).

115 In relation to speed, it is sufficient at this point to note that the recommended maximum speed limit on the roadway in question was 100 kilometres per hour. The experts were unable to produce a precise speed of the vehicle but agreed upon a range of 100 to 120 kilometres per hour.

116 It was submitted for the defendant that both the defendant and the plaintiff ought to have foreseen that, in the event that the vehicle left the bitumen sealed surface of the roadway, then “… speed was a factor which would limit obviously the driver’s ability to cope with, safely, the obstacle that had presented itself” (transcript, 19 October 2009, p.10).

117 It was further submitted that Mr Farrell had “ample time” to warn Mrs Farrell (and ought to have warned her) that by travelling at the speed she did, she compromised her ability to deal with any foreseeable event.

118 The second aspect identified by Mr Rewell was said to be “… loss of concentration and/or fatigue”.

119 Reliance was placed upon evidence that indicated that, over a distance of 110 metres, the nearside wheels of the vehicle and, at a later point, all four wheels, entered onto the unsealed shoulder of the road before the vehicle swerved to its right in an apparent attempt by the defendant to regain control on the bitumen road surface.

120 The defendant, in particular, relied upon Mr Keramidas for the proposition that the vehicle had probably drifted to the left hand edge of the sealed road “for a considerable distance” before it actually commenced to make contact with the unsealed shoulder of the road. The proposition was, based upon Mr Keramidas’ analysis, that the path of travel of the vehicle in this respect indicated “… at the very least a substantial and prolonged lapse of concentration on the part of Mrs Farrell. It may be best explained by fatigue” (transcript, 19 October 2009, p.11).

121 Mr Rewell stated that the defendant’s contention was:-

“… that the length of time over which this path of travel occurred, was ample to enable a passenger who was awake, to offer advice to the driver. The passenger did not have to be as alert as he would have been if he’d been driving himself and we don’t suggest that there is a legal duty for a passenger to put himself in the position of the driver and display the precise level of alertness and response that a driver would. But having regard to what Justice McHugh said in Joslyn v Berryman, the passenger does have an obligation to take some action if, over a reasonable period of time, which will depend of course on the circumstances, the passenger has the opportunity to take some action which is likely to prevent the ultimate course of events that occurs; that is, some action which is likely to assist the driver in maintaining control of the vehicle …”

122 Mr Rewell continued that the contention would be that the overall period of time was of the order of six seconds, although he, properly conceded “… we don’t suggest that the period of time Mrs Farrell had been driving, of itself, is sufficient to enable your Honour to infer that she was fatigued” (transcript, p.11).

123 Mr Rewell also properly stated that he accepted (transcript, p.11):-

“that Mrs Farrell was fresh and ready to drive at the time she assumed control of the vehicle” I also accept that Mr Farrell was likely to have been reasonably fresh himself … but, of course, the onset of fatigue differs between individuals and any individual may well differ according to the road environment with which they are coping …”

124 Mr Rewell stated that the defendant accepted that Mrs Farrell had been driving between an hour and an hour and a quarter before the accident happened (transcript, p.12).

125 Although Mr Keramidas stated in his report of 14 September 2009 that “the final and most likely cause for the vehicle leaving the roadway would be driver fatigue …” (p.16, line 30), Mr Rewell stated:-

“… the real point is that I don’t have to prove that Mrs Farrell was, as a fact, fatigued. What I have to prove is that whatever the cause was, she had a lapse of concentration which was sufficiently lengthy to enable Mr Farrell, keeping a state of alertness reasonable for a passenger, not a driver, to have done something about it.” (transcript, p.12)

126 Relying on Mr Keramidas’ calculations, Mr Rewell outlined the defendant’s contention that the vehicle initially would have drifted to its left over a prolonged distance, probably exceeding 100 metres, which, depending upon speed (100 or 110 kilometres per hour) is around 3 to 3.5 seconds (transcript, p.12).

127 After the first nearside wheel departed the sealed edge of the roadway and travelled a further 110 metres as marked on the diagram produced by Constable Deans (Exhibit 3) (again, assuming the speed of the vehicle was essentially maintained), then another 3.5 seconds would have elapsed before the defendant reacted, turning the vehicle to the right causing the yaw markings on the roadway.

128 The submission was, accordingly, that at a speed of 100 kilometres per hour:-

“there was a period of around seven seconds where it would appear that her concentration was so impaired that she did not perceive that the vehicle was moving to its left onto and over the edge of the sealed surface.” (transcript, p.13).

129 It was further submitted that a period of six to seven seconds was:-

“… more than ample to enable a reasonably alert passenger to perceive that something unnecessary, unexpected and dangerous was occurring and to offer some comment or advice which would have assisted the driver in correcting the dangerous line of travel which was taking place.” (transcript, p.13).

(6) PLAINTIFF’S SUBMISSIONS

130 Mr Fitzsimmons produced a document entitled “Findings of Fact” which I have marked MFI 2.

131 I have earlier referred to submissions for the plaintiff to the effect that Mr Keramidas’ analysis was, in certain respects, built on speculation. He also contended that the defendant had not discharged the onus of proof, in particular, as to what the plaintiff was doing at the time of the events leading to the accident.

132 Reliance was placed upon the statement of principle relating to circumstantial evidence required to support a finding of negligence discussed by the High Court in Lexton v Vines (1952) 85 CLR 352 at [8] in the joint judgment and in the judgment on the Court of Appeal in Flounders v Millar [2007] NSWCA 238 at [35].

133 Mr Fitzsimmons relied upon dicta of Gleeson CJ in Imbreev McNeilly (2008) 82 ALJR 1374 at [3] and of the plurality at [69], [85], [93] and [96]. He submitted that this was not a case in which the plaintiff had knowledge of any personal attribute of his wife that may, in the terms of Gleeson CJ in the above cited passage at [3], affect her driving capacity to exercise care for the safety of others.

134 The submission for the plaintiff was that the evidence supported all of the factual findings in MFI 2, that there was no duty of care as alleged by the defendant, no breach of duty if his primary submission was not accepted and, on the same basis, no evidence of any causal nexus between the alleged breaches of duty and the accident.

(7) CONSIDERATION

135 The issue of contributory negligence of a passenger in motor vehicle accident cases has arisen in a variety of factual situations. Some of the reported cases deal with the question of the contributory negligence of a passenger in accepting conveyance by a drunken driver, in other cases, the failure to wear seat belts or, in the case of motor cycle passenger, failure to wear a helmet.

136 The test of contributory negligence is, of course, an objective one: Joslyn (supra) per McHugh J at 564, [32] and per Gummow and Callinan JJ at 575, [70].

137 The expression “contributory negligence” means the failure by a person to use reasonable care for the safety of himself or his property, so that he becomes the author of his own misfortune: Symons v Stacey (1922) 30 CLR 169; Gardiner v Motor Vehicle Insurance Trust (1955) 95 CLR 120. In Ellerman Lines Limited v H & G Grayson Limited [1919] 2 KB 514 at 535, Atkin LJ observed:-

“The doctrine of contributory negligence cannot, I think, be based upon a breach of duty to the negligent defendant. It is difficult to suppose that a person owes a duty to anyone to preserve his own property. He may not recover if he could reasonably have avoided the consequences of the defendant’s negligence.”

138 In Imbree (supra), the High Court reviewed the principles and elements of the actions of negligence in the context of a learner driver with a supervising passenger.

139 As I have earlier noted, Mr Fitzsimmons drew my attention to the observations of Gleeson CJ at [3] as follows:-

“There may be any number of ways in which personal attributes, permanent or temporary, may affect a driver’s capacity to exercise care for the safety of others. Knowledge of such attributes may be relevant to contributory negligence, or to a defence of voluntary assumption of risk, but the fact of such knowledge is not normally treated as a defining aspect of the circumstances, so as to modify the care that is required as a legal obligation. It was not so treated by the plurality in Cook v Cook …”

140 The High Court reconsidered the decision in Cook v Cook (1986) 162 CLR 376. The decision in that case depended upon the application of notions of proximity that involved reasoning that does not accord with subsequent decisions of the High Court. Accordingly, the Court stated that Cook (supra) should no longer be treated as expressing any distinct principle in the law of negligence.

141 In the course of its decision in Imbree (supra), the High Court noted that the doctrine of proximity had been used as a unifying criterion for duties of care in the context of what is sometimes referred to as primary negligence. Proximity had been used as a tool for determining primary negligence and, in particular, for informing whether, in the circumstances of a particular case, a duty of care existed and, if so, the content of that duty.

142 In Imbree (supra), the High Court considered the role of a supervising driver and inexperienced driver. In the joint judgment, Gummow, Hayne and Kiefel JJ at [63] stated:-

“It is this last feature of the statutory landscape which suggests that the licensed driver who sits beside a learner drier is in a position to supervise the learner’s conduct …”

143 Their Honours then a little later stated at [65]:-

“65 … It is convenient, for present purposes, to proceed on the basis that the licensed driver, who accompanies a learner driver, is obliged at least to supervise the learner.
66. It is not necessary to decide whether the ambit of the supervision that may be asserted by that learner driver extends beyond ensuring compliance with the road law to include all aspects of the learner’s operation of the vehicle. And of course if the licensed driver was bound to ‘instruct’ the learner, the obligations of the licensed driver would more readily be understood as encompassing all aspects of the learner’s operation of the vehicle. Rather, it must be recognised that there are limits to what or instruction can achieve. There are limits because no amount of supervision or instruction can alter two facts. First, unless the vehicle has been specially modified to permit dual control, it is the learner driver, not the supervisor or instructor, who operates the vehicle. Second, the skill that is applied in operating the vehicle depends entirely upon the aptitude and experience of the learner driver …”

144 Their Honours also observed at [68] that if the supervisor could have influenced the outcome, it may be that the supervisor failed to take reasonable care of his or her own safety and that went directly to the question of contributory negligence, not to the question of the driver’s negligence.

145 The factual circumstances and the context in which Imbree (supra) arose included the fact that the appellant allowed the first respondent to drive the four wheel drive station wagon on a gravel road in the Northern Territory. The driver, a 16 year old, had little driving experience, a fact known to the appellant. Additionally, the 16 year old driver was neither licensed to drive nor held any learner’s permit. The fact of the appellant’s actual knowledge of the inexperience of the first respondent to drive was a central fact that attracted both a duty of care and was a material matter in determining the scope of the duty.

146 The circumstances of the present case are very different. Mrs Farrell, on the evidence, was a highly experienced and competent driver. Those facts, of course, were well known to Mr Farrell. She had, as I have earlier noted, driven extensively in the United Kingdom, America, New Zealand, Fiji and other places including driving on unsealed roads. The evidence indicates that, over her many years of extensive driving, she has been a careful driver and has never been charged with a breach of the road rules.

147 Mr Farrell, of course, was not in the position of an instructor, as was the appellant in Imbree (supra). Mr Farrell had, based on many years of experience, every reason to have had complete confidence in his wife’s driving ability and competence on the day of the accident.

148 The evidence does not, in my opinion, establish any factor or circumstance that would attract or impose a duty or an obligation on Mr Farrell to instruct or warn his wife as has been claimed in this case. In contrast, in Imbree (supra), the primary judge made findings to the effect that the appellant should have instructed the first respondent not to change direction sharply and not to accelerate when seeking to return to the road surface proper. Those instructions were required by reason of the first respondent’s inexperience. Gummow, Hayne and Kiefel JJ observed at [93]:-

“It may be accepted that the primary judge’s findings about the first two instructions to be given were framed with particular application to the events that had happened. Reduced to their essentials, however, both instructions amounted to a single piece of advice: do nothing sudden when driving on a dirt road. It was open to the primary judge to find that failure to offer this kind of advice to the first respondent amounted to a want of care for the appellant’s own safety.”

149 There is no parallel with the circumstances in Imbree (supra) and the present case.

(8) FINDINGS

150 Having considered the evidence, I make the following findings.

151 I accept Mrs Farrell as a truthful witness. She gave her evidence in a straightforward manner.

152 Whilst there is doubt as to the reliability of Mrs Farrell’s recollection as to the exact point on the roadway when the nearside wheel or wheels of the vehicle first left its bitumen surface, I consider that she was otherwise reliable in relation to the specific events, the subject of her oral evidence.

153 There is no reason to reject, either in whole or in part, Mrs Farrell’s account provided by her to police on 21 February 2006 (Exhibit 5). There was no suggestion but that the statement given by her was a bona fide account of events.

154 The approach speed of the vehicle prior to its leaving the bitumen surface was 99 to 100 kilometres per hour.

155 The defendant moved the vehicle to the left of the roadway approaching the crest in the roadway pursuant to a decision by her to ensure that there was no risk of a possible collision with any oncoming traffic.

156 I accept Mrs Farrell’s account as recorded in Exhibit 5 and in oral evidence to the effect that she endeavoured to control the vehicle after the nearside wheels made contact with the shoulder of the roadway, in particular, endeavoured to steer it back onto the bitumen surface. Her account to police of having felt the vehicle pulling to the left, I accept as both consistent with her oral evidence of attempting action in response to the wheel or wheels leaving the bitumen surface and eventually returning it to the bitumen roadway where the yaw marks commence.

157 Mrs Farrell’s evidence in this latter respect is consistent and is supported by Mr Johnston’s evidence as to there having been a constant symmetrical arc which was consistent with steering input.

158 I note, in particular, his evidence as follows:-

“Q. He said he saw no evidence of braking and we all accept that.
A. I thought he said no evidence of response. Clearly there has been steering, because the arc's, the mark is curved. There is no question there has been steering input through the mark, because it's curved. But to suggest that the response happened at this finite point in time in the marks, I have looked at these photos as closely as I can and I can't determine that from the marks that somehow at this point there is an initiation of a response.

Q. Now, do you agree with Mr Keramidas that steering input is likely to cause furrowing?
A. Depends on the nature of the surface, the degree of steer angle and a whole lot of things. If you steer aggressively you may get more furrowing, but the material going from soft to hard can cause more difference than increasing steer angle. So to infer that - and I can't see in here where there is different furrowing to where there isn't different furrowing in any event.”

159 Mr and Mrs Farrell were well rested and alert when they commenced their journey on the day of the accident. Mrs Farrell was not suffering fatigue up to, or at the time of, the accident. I accept the evidence which plainly establishes that she was, at all relevant times, alert from the point she commenced driving from Gilgandra and that that would have been evident to Mr Farrell.

160 Mrs Farrell did not suffer from fatigue-induced loss of concentration and did not suffer from any circumstance causing her to lose concentration in the course of driving up to the point of the accident.

(9) CONCLUSIONS

161 In the circumstances of this case as established by the evidence, there was no duty of care on the plaintiff to act as alleged in the amended defence. The circumstances that specifically support the conclusion include:-

(1) Mrs Farrell’s competence as a driver.

(2) Mrs Farrell’s condition when driving the vehicle, in particular, that she was in an alert and well-rested condition.

(3) The matters in (1) and (2) were well known to Mr Farrell.

(4) There was no circumstance or aspect adverse to Mrs Farrell’s capacity to operate and manage the vehicle and certainly not known to the plaintiff.

162 Even if I am wrong in that respect, the scope of the duty would be limited to circumstances in which there was sufficient opportunity for Mr Farrell to have been able to know and assess events leading to the accident and take action or respond.

163 In the present case, it is necessary to take into account:-

(1) The speed with which events unfolded.

(2) The completely unexpected nature of those events.

(3) The possibility that, having regard to Mrs Farrell’s driving experience and competence, it was open to the plaintiff to conclude that she was in a position to deal with the situation without any intervention or contribution from him.

164 The circumstances in (1), (2) and (3) above, in combination, reflect the circumstances confronting the plaintiff. Whether one considers his position in terms of a period of 3.5 seconds or the period of seven seconds (earlier referred to), those circumstances placed the plaintiff in a situation not unlike that which has been described or referred to in motor vehicle accident cases as “the agony of the moment”. Decisions taken in circumstances such as those (ie, whether to act or not to act) are not to be analysed and assessed by the standard applicable to a situation that allows or permits full or sufficient perception, appropriate reflection and decision-making processes. The facts established by the evidence in this case, in my opinion, do not establish any want or lack of care or breach of duty by the plaintiff as has been contended.

165 Even if a breach of duty could be established (contrary to the conclusion I have expressed) I do not consider that the defendant has discharged the onus she has to prove on the balance of probabilities, any causal connection between any alleged breach and the accident. I will not repeat, but rely upon, the very short interval of time in which any warning by the plaintiff to his wife could have been processed by her and have influenced her actions or ability to control the vehicle once the vehicle started to move off the bitumen roadway. The evidence of Mr Johnston as to perception/reaction times, time to react to auditory stimulus and time for what he termed “decision processing time” indicate that any action by the plaintiff was unlikely to have had any bearing upon the chain of events leading to the accident.

166 The defendant has not, in my opinion, discharged the evidentiary onus on her to establish contributory negligence by the plaintiff as alleged or at all.

167 Accordingly, the defence of contributory negligence must fail and I so hold.

168 I propose to order costs of the hearing for the first two days’ in relation to the issue of contributory negligence and costs otherwise of and incidental to the defence of contributory negligence in favour of the plaintiff. Before doing so, I will hear from counsel.

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