Madeleine Louise Sweeney bhnf Norma Bell v Thornton

[2012] HCATrans 58

[2012] HCATrans 058

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S321 of 2011

B e t w e e n -

MADELEINE LOUISE SWEENEY BHNF NORMA BELL

Applicant

and

ANDREW JOHN THORNTON

Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 MARCH 2012, AT 11.44 AM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friend, MR E.G. ROMANIUK, for the applicant.  (instructed by Matthews Folbigg Pty Limited)

MR R.R. STITT, QC:   May it please your Honours, I appear with my learned friends, MR D.M. WILSON and MS C.O. GLEESON, for the respondent.  (instructed by Hunt & Hunt Lawyers)

FRENCH CJ:   Thank you.  Yes, Mr Toomey.

MR TOOMEY:   May it please your Honours.  Your Honours, in the 109 years that this Court has been sitting it has not, so far as we are able to discover, dealt with any claim by a learner driver against the supervisor/instructor.

FRENCH CJ:   Did they have learner drivers 109 years ago?

MR TOOMEY:   They probably would have been teaching them how to drive Stanley Steamers, your Honour.  But there are, of course, the three well known cases.  There was the 1974 case of Chang v Chang, there was Cook v Cook in 1986 and there was Imbree v McNeilly in 2009.  This case raises the question of the duty owed by the instructor/supervisor to the learner.  It is, in our respectful submission, a point which has got to be determined.  It is true that the Court looked at the duties and distinctions between an instructor and a supervisor in Imbree v McNeilly but it was obiter because the duty concerned with there was the duty owed by the learner driver to the tutor.  This case raises fairly and squarely the duty of the instructor/tutor to the learner.

FRENCH CJ:   Was there a factual difference between the primary judge in the Court of Appeal in relation to the speed at which the applicant entered the bend?

MR TOOMEY:   Your Honour, there was no evidence as to the speed at which the applicant entered the bend.  The expert said there was no evidence on which any opinion could be given on that.  The primary judge and the Court of Appeal both found that the speed in the bend was 70.  We challenged the finding at first instance by notice of contention and we maintain that challenge in this Court.

FRENCH CJ:   So, as I understand it, the primary judge found that the speed of entry was not reasonable in the circumstance.  I think that was the conclusion, was it not?

MR TOOMEY:   Your Honour, I think it was not so much the speed of entry, but the speed at the time that the vehicle ‑ ‑ ‑

FRENCH CJ:   That the accident occurred.

MR TOOMEY:   ‑ ‑ ‑ lost adhesion was unreasonable.  Having made the theoretical point as to why your Honours might entertain leave, we can return to the facts of the matter.  Your Honours, as I said, the primary judge held, accepting the forensic expert of the applicant, that 70 kilometres an hour on a wet road for an inexperienced driver was dangerous and that the combination of those factors led to her leaving the road and being seriously injured. 

The Court of Appeal found that 70 kilometres an hour was not dangerous and, accordingly, they entered a verdict for the defendant, but that left the position where the Court of Appeal had not dealt with the question what caused the accident and, of course, that is what the case was run about.  The logicality of the finding, we say, is this.  Accepting the finding that the plaintiff was doing 70 kilometres an hour at the time of the accident, there is no finding anywhere that there was any driving error of any nature by the applicant and, in fact, we have included in the ‑ ‑ ‑

FRENCH CJ:   What about what appears at 153 in the Court of Appeal, page 112 of the application book.

MR TOOMEY:   Your Honour, there are two things to be said about that.  One, no evidence justified that and there was no evidence that the applicant after the slip applied sharp acceleration, and that is one of our complaints, but the second thing is this, that that is after the slip and an unsatisfactory emergency reaction by a 16‑year‑old learner after a slip for which she has no culpability is irrelevant to the questions which were being decided in this case. 

We included in the bundle of materials, your Honours, the statement of the respondent who was the supervisor and who did not give evidence in the case.  That has a particular resonance in circumstances where the applicant is brain damaged and has no memory at all of the circumstances and the respondent’s girlfriend, Stevie‑Lee Taylor, who was also in the car, also has no memory of the events that happened.  So the only person in the world who could say what happened in the car and at the time did not give evidence. 

The point I wanted to make is this.  Mr Thornton, in this statement given to the police a month or so after the accident, made no reference to any driving failure by the applicant leading to the slip and it is the slip, your Honours, which led to the accident, as will appear from what I am about to read to you.  I am sorry, we have not paginated those documents.  I apologise to your Honours.  You will find Mr Thornton’s statement is immediately after the reproduction of the Civil Liability Act.  It is about six pages into the bundle.  If your Honours go to paragraph 13:

13.      I recall we were heading back into Nabiac and I remember the road was wet but it wasn’t actually raining.  I don’t actually recall whether it had been raining on the trip out although it may have done while we were waiting for Stevie to get her clothes. 

14.      Madeleine was driving; she appeared to be handling the car without any problems.  I remember we came up to a left corner and Madeleine turned into it normally.  As she came out of the corner I felt the back of the car move out very slightly to the right.

Now, that, your Honours, is the break in adhesion which resulted in the car going off the road.  All that happened after that would not have happened had the vehicle not lost adhesion.  Your Honours will see, in our submission, that there is nothing there which could be taken to say that there had been any fault by the applicant in driving the car.  Now, that is important for this reason, that it sets up a logical difficulty for the Court of Appeal which they did not resolve.  If there was no fault by the applicant in her driving of the vehicle and if 70, which was the speed she was doing, was a safe speed on a wet corner for an inexperienced driver, then why did the accident happen? 

In our respectful submission, there were two possible resolutions of that dilemma and they are either that 70 was not a safe speed, as was the opinion of the applicant’s forensic expert and accepted by the trial judge, or the vehicle was not doing 70, it was doing a higher speed.  There was evidence, we say cogent evidence that it was doing a higher speed which was simply brushed aside by the Court of Appeal.  That was the evidence of Mrs Fancourt. 

FRENCH CJ:   This is the finding of the Court of Appeal at 152, I think, at page 112?

MR TOOMEY:   That is correct, your Honour. 

FRENCH CJ:   Ultimately, this is a fact finding by the Court of Appeal against you.

MR TOOMEY:   Yes.  Well, not necessarily against me because your Honours will remember that the trial judge had made that finding and found that it was ‑ ‑ ‑

FRENCH CJ:   Well, against the hypothesis that she was doing a speed higher than 70 kilometres per hour which is ‑ ‑ ‑

MR TOOMEY:   Indeed, your Honour, but our notice of contention raised a number of matters, one of which was that the only independent evidence in the case, that of Mrs Fancourt, was not given proper weight.  We have reproduced her evidence in our submissions at paragraph 17 on application book 126.  Mrs Fancourt was driving her 13‑year‑old son home to her home west of where the accident happened.  The car the applicant was driving was travelling east, Mrs Fancourt was travelling west.  Mrs Fancourt gave evidence and her statement eventually got in.  Mrs Fancourt described that when she first saw the respondent’s vehicle:

‘it was fishtailing’ and that she the driver was ‘steering madly’ –

and Mrs Fancourt demonstrated these huge sweeping movements of the steering wheel of the car.  She said –

she ‘estimated’ the speed ‘would be roughly about 80’and ‘as soon as I saw it I realised that it was out of control’.

Further down in that paragraph –

Ms Fancourt also provided a statement to the police dated 7 September 2005 –

which was about 11 days after the events –

‘To me it looked to be travelling to fast to take the bend.  I couldn’t estimate what speed it was doing other than to say it looked like around 80 kilometers per hour’ and ‘As soon as I saw the car I could tell it wasn’t under control.  The car was swerving from side to side in sort of a fishtailing movement’.

She said in evidence that the vehicle was, when she saw it, halfway round the bend and that led to an important finding in favour of the applicant.  The defendant’s case was that the applicant had lost control of the vehicle because 13 metres past the apex of the bend, that is east of the apex of the bend, there were some irregularities in the road surface caused by a drain being put under the road or maintained.  The respondent’s case was that the applicant had lost control of the vehicle at that point without any fault on the part of the respondent.  Mrs Fancourt placed the vehicle, when she first saw it, already out of control as being at the apex of the bend, that is 13 metres or so before the vehicle reached the irregularities and that caused the trial judge and the Court of Appeal to say that the irregularities had nothing to do with the loss of control. 

Now, that is what gives particular point to our complaint that the Court of Appeal accepting what her Honour had found, that the loss of control was before the irregularities, the Court of Appeal did not then put their mind to what had caused the loss of control.  Mrs Fancourt lived in the area, drove around the bend everyday, she said, and was familiar with it.  She estimated the speed at 80 kilometres an hour, but, more importantly, she said that as soon as she saw it, she realised it was out of control and “to me it looked to be travelling too fast to take the bend”.  Now, if I can take your Honours to the ultimate dealing with that evidence, with the evidence of Mrs Fancourt by the Court of Appeal at paragraph ‑ ‑ ‑

GUMMOW J:   Paragraph 154, is it not?

MR TOOMEY:   Yes, your Honour, paragraph 154.  It omits the most important statement made by Mrs Fancourt, which was “it looked as if it was travelling too fast to take the bend” and the Court of Appeal does not reproduce that.  What Justice Sackville for the court said, that he did not think:

Mrs Fancourt’s estimate that the vehicle was travelling at about 80 kph alters the position.  Understandably, she was tentative in her estimate of the speed.  In her police statement she said that she

“couldn’t estimate what speed it was doing other than to say it looked like around 80 kilometres per hour”.

There are two things to say about that.  You have a person who knows the bend, who drives around it everyday, who thinks the car is doing about 80.  It is not as if she is looking at a bend she does not know.  This is a piece of road with which she is intimately familiar.  The second thing, and the more important thing, is that there is no reference to this fact that Mrs Fancourt’s evidence did not rely upon an assessment of 80 kilometres an hour.  The real estimate of hers, the real evidence of hers which we relied upon was that when she saw the car with her knowledge of the bend she thought it was travelling too fast to take the bend.

Now, that of course would explain and would justify the learned trial judge’s decision that although the vehicle was travelling – she found it was travelling at 70 – that that was too fast because an experienced driver – Mrs Fancourt was in her late 40s, I think – an experienced driver who drove around the road everyday thought it was going too fast.

FRENCH CJ:   Does this all feed back into the finding of no breach of duty at 133 in the court’s reasoning?  It is all critically dependent upon the findings as to speed.

MR TOOMEY:   Yes, your Honour, that is so, but not only as to speed but the effect of the speed.

FRENCH CJ:   Yes, I appreciate that.

MR TOOMEY:   And our real complaint here is that we can live with the finding that the car was doing 70, but we cannot live with the failure to pay regard to the fact that the person who knew the bend said it was going too fast to take the bend.  That is simply not referred to in the ultimate decision of the Court of Appeal.  Your Honours, can I just briefly touch on a couple of things.  The duty of care was said to arise from the regulation which is set out at paragraph 102 of the Court of Appeal.  That is at page 95, clause 12(5) of the licensing regulation says:

A person accompanying a learner in a vehicle being driven by the learner on a road or road related area must:

(a)supervise the learner with respect to the driving of the vehicle, and

(b)take all reasonable precautions to prevent a contravention of the road transport legislation within the meaning of the Road Transport (General) Act 1999.”

Your Honours, when Justice Sackville came at paragraph 113 on 99 to setting out:

the following general principles can be stated in relation to the duty of care –

he made no mention of the duty under 5(1)(a) at all.  He said, “the duty extends to taking the precautions that a reasonable person would take”, what precautions are reasonable under the Civil Liability Act.   Then he says:

although the question of reasonableness depends on the circumstances, it is a material factor that the Licensing Regulation, cl 12(5)(b), requires the supervisor to take reasonable precautions to prevent the learner driver contravening the road transport legislation –

But we say that the encompassing and most important requirement under clause 12 is that the person accompanying the learner must supervise the learner with respect to the driving of the vehicle, and that covers such things as warning them to slow down on a wet road.  I see I have got the light.

FRENCH CJ:   Thank you, Mr Toomey.  Yes, Mr Stitt.

MR STITT:   May it please your Honours.  There are three reasons why special leave should be refused.  The first, this application and appeal turns upon questions of fact, that is to say, it is fact specific.  Second, the judgment of the Court of Appeal is correct and it is not attended with any or any necessary or sufficient doubt.  Third, it does not raise any question of legal principle of general application which requires the intervention of this Court and that the relevant legal principles are settled by this Court.

FRENCH CJ:   It is really put as a visitation case, is it not?

MR STITT:   Well, I am not quite sure how my learned friend puts it, but I do not understand him to be suggesting that this is ‑ ‑ ‑

FRENCH CJ:   No, he is not putting it that it raises a question of general principle.  He, I think, goes to the administration of justice in this particular case.

MR STITT:   Yes.

GUMMOW J:   Your point 2, I think.  Your ground 2, you have to develop that, I think.

MR STITT:   Yes, your Honour, but can I deal with the first.  The result of the Court of Appeal turned upon the factual question of whether the trial judge erred in finding that she could not be satisfied that the vehicle ended and traversed the bend at a speed greater than 70 kilometres per hour.  Now, the factual question on this aspect with which the Court of Appeal dealt were, what speed was the vehicle travelling when it entered and commenced its negotiation of the bend to the point where control of vehicle was lost and, two, at what point on or in the bend did the initial slip of the rear of the vehicle occur and why? 

It is clear that the trial judge found that the speed of the vehicle entering and travelling through the bend was 70 kilometres per hour and, indeed, it was the plaintiff’s case that the vehicle was travelling at 70 kilometres per hour but that that was an inappropriate and unsafe speed and that, subsequently, my learned friend attempted in the Court of Appeal by his notice of contention to suggest that it was travelling at a higher speed and that, as we know, failed.

The trial judge posed for herself the stark question of whether 70 kilometres per hour was unsafe speed and in analysing that question, the trial judge accepted the evidence of the experts, which ultimately became common ground, of three things.  One, that the designed speed for the bend was 73 kilometres per hour.  Two, that the critical speed in wet and dry conditions for the bend was between 124 kilometres per hour and 137 kilometres per hour and, three, that the comfort speed was 73 to 75 kilometres per hour.  Against those findings by the trial judge, the Court of Appeal’s finding that the speed of 70 kilometres per hour, when objectively regarded, was not an unsafe speed even in the wet conditions and the prevailing circumstances. 

The respondent was simply a voluntary supervisor.  He was not a professional or qualified teacher or instructor and the supervisory occasion was purely social.  In those circumstances, the Court of Appeal correctly posed for itself the question as to whether a reasonable person in the respondent’s position as a voluntary supervisor would have instructed or guided the applicant to lower the speed as the car approached or traversed the bend and the Court of Appeal ‑ ‑ ‑

GUMMOW J:   Where does the Court of Appeal do this?

MR STITT:   The Court of Appeal did that, your Honour, at application book 101 at paragraph 118:

There is nothing to indicate to the appellant that the respondent was driving at a speed or in a manner that contravened the road transport legislation or which should have alerted the appellant that her speed was such that she should have been told to slow down before entering the bend.  It cannot be suggested, therefore, that the appellant failed to take all reasonable precautions to prevent such a contravention.

The Court of Appeal dealt with the findings of the trial judge about the comfort speed, critical speed and the like.  It accepted that the trial judge had made those findings of fact.

GUMMOW J:   Then the Court of Appeal reaches a conclusion at paragraph 133, “the evidence did not support a finding that the appellant breached his duty of care”, et cetera.

MR STITT:   Yes.  That was based upon the proposition that there was no evidence to establish that a person in the position of the respondent, “the voluntary supervisor, acting reasonably, would have considered” the configuration of the bend, et cetera, was such that it should have been given some instruction or guidance.  In our submission, that is a correct finding and that the Court of Appeal’s finding was based upon the evidence or lack thereof. 

FRENCH CJ:   Well, the argument is that, in coming to that conclusion, the Court of Appeal did not, as it were, pay attention to evidence that the applicant was travelling too fast for the conditions.  This is from the witness, Mrs Fancourt.

MR STITT:   But what the Court of Appeal did was to approach the question of speed on the basis of the expert evidence which the trial judge accepted, which I have just put to the Court, about comfort speed, critical speed and the fact that at the relevant time the vehicle was travelling at 70 kilometres per hour which was below not only the speed limit for a learner driver, which was 80 kilometres per hour, but the speed limit at this part of the country road was 100 kilometres per hour.  What the Court of Appeal said was that in those circumstances, to travel at a speed of 70 kilometres per hour was not an unsafe speed and when you superimposed upon that the fact that the respondent was unaware of the circumstances of the bend which Mrs Fancourt said was particularly deceptive, that there was nothing that alerted or ought to have alerted him to the fact that the speed may have been too high.

Essentially, the plaintiff failed in the Court of Appeal for want of proof.  It was a lack of proof that ultimately the Court of Appeal found against the plaintiff.  In our submission, in order to deal with my learned friend’s application, if special leave was granted, this Court would have to re‑examine for itself the entirety of the evidence about a case that lasted for seven hearing days with a great deal of expert evidence and a great deal of evidence that related to the critical speed, comfort speed, design speed and the like as to whether or not this was a speed that was unsafe and, in our submission, this is not a case which this Court would attempt to do so.

Now, could I deal with the second ground which is, in our submission, the Court of Appeal’s decision was correct.  It, firstly, correctly applied the test as to the scope of the duty owed by a voluntary supervisor to a learner driver in these circumstances.

GUMMOW J:   What is the significance of paragraph 6 of the trial judge’s reasons?

MR STITT:   Is that the concession which I made?

GUMMOW J:   Yes. 

MR STITT:   Well, I was just about to say that I made a concession at the outset as to what we said the relevant duty was.  That concession was accepted by my learned friend and it was also accepted by her Honour except that she put a gloss on it in paragraph 6, page 3 where she says:

It is implicit in that submission that the defendant was obliged to adjust and vary the content of his instructions and directions to account for any changed driving conditions ‑

That gloss, the Court of Appeal said, was incorrect and, in our submission, that is a correct analysis of the duty of care.  Indeed, at first instance and in the Court of Appeal there was never any argument about the scope or nature or extent of duty of care and the concession that I made at the outset of the case was adopted and accepted as being correct.  So that, in our submission, the question of scope of duty just simply did not arise in the hearing in the Court of Appeal.  It is not correct, as my learned friend submits, that the Court of Appeal failed to have regard to clause 12 in relation to the licensing regulations.  It identified the legislative regime, including clause 12.  If you go to the application book page 95, paragraph 102, it is there set out under the heading “Scope of the Duty” by Justice Sackville and then again it is referred to in application book 100 where again Justice Sackville at paragraph 116, where he is talking about the analysis of the trial judge’s approach, he said:

In addition she correctly referred to cl 12 of the Licensing Regulation as providing content to the appellant’s duty of care.

So that again in two places it was referred to as part of the relevant legislative regime, but in the light of the concession which I made about the scope of the duty, in our submission, nothing turns on this at all.  My learned friend said that this case has never been decided.  In our submission, in Imbree this Court did decide the duty of care owed by a voluntary supervisor in the context of the contributory negligence claim which was raised in Imbree and the standard is the same whether considering primary negligence or contributory negligence and that is so by the Civil Liability Act section 5R.  So that, in our submission, there is no issue as to the correct legal principle to be applied. 

Your Honours, as to the third reason, as I have already submitted, the concession as to the nature and scope of the duty of care owed by the respondent meant that there really was not any issue of that in the Court of Appeal and that the Court of Appeal applied the correct approach.  My learned friend accepted in the Court of Appeal that the issue was really speed; that was the only issue.  He tried to alter the finding of speed of 70 kilometres per hour and he failed on that.  In our submission, the special leave ought to be refused for those three reasons, if the Court pleases.

FRENCH CJ:   Thank you Mr Stitt.  Yes, Mr Toomey.

MR TOOMEY:   Your Honours, the consideration of contributory negligence in Imbree considered the duty of the supervisor to take care for his own safety, not to take care of the learner driver.  It was a case where the learner driver was suing the supervisor and that is how contributory negligence arose.  Your Honours, my learned friend said that you should supervise on the case the lack of knowledge of the respondent, that is, the lack of knowledge of the respondent about the bend, but, your Honours, that is, at the least, disingenuous. 

Miss Taylor, the girlfriend who was in the back of the car lived west of the bend, so that every time Mr Thornton had gone out to see her he would go round that bend and every time he came back from seeing her or brought her into town he would go round that bend in the direction in which the applicant was driving.  The suggestion that he had no knowledge of the bend cannot stand.  Now, it is true that we were not in the position to give exact evidence about that because we did not know, but he was in the position to give exact evidence and he did not give it and accordingly, very little material was sufficient, we say, for the conclusion to be drawn in the absence of his rebuttal that he did know the bend. 

The Court of Appeal erred in another way and this is something which ought to be looked at by this Court.  At paragraph 120, page 102, in the Court of Appeal judgment, their Honours said:

It is true that Mrs Fancourt said that the bend in Wallanbah Road was “very deceptive” and that it was more difficult to negotiate than it appeared.  But there was no evidence that the appellant appreciated any particular danger in the configuration of the bend even though he had travelled on the road in the past.

That seems to turn the test of foreseeability into a subjective rather than an objective test.  He certainly knew that the applicant was a very unskilled driver, a matter, again which the Court of Appeal ignored, said nothing about all the evidence as to the poor standard of her driving, but did say at paragraph 121 that the respondent said that he:

had formed the view that she “knew what she was doing”.

So the Court of Appeal reproduced the untested statement of the respondent and made no reference to the material we have referred to in paragraph 21 of our submissions, all the material from the people who had tutored her which said that she had a very low standard of competence and that, in our respectful submission, is important in a case where the Court of Appeal, we say, did not properly appreciate the effect of their findings.  May it please the Court.

FRENCH CJ:   Thank you, Mr Toomey.  The Court will refer the application to an enlarged Court for consideration.  Is it likely to take more than half a day, do you think?

MR TOOMEY:   It certainly would not take more than a day, your Honour, and probably half a day.

FRENCH CJ:   Probably err on the side of a day, should we, Mr Stitt?

MR STITT:   I agree with that.

FRENCH CJ:   I think you will have some access to some written directions in relation to the time limits for filing of submissions.  The Court will adjourn to reconstitute.

AT 12.27 PM THE MATTER WAS ADJOURNED