Thornton v Sweeney

Case [2011] NSWCA 244

Court of Appeal

New South Wales
Case Title: Thornton v Sweeney
Medium Neutral Citation: [2011] NSWCA 244
Hearing Date(s): 27 June, 1 July 2011
Decision Date: 23 August 2011
Jurisdiction:
Before:

Campbell JA at [1], Sackville AJA at [2], Tobias AJA at [162]
Decision:

1.Appeal allowed.
2.Set aside orders 1, 2 and 3 made by Fullerton J on 10 September 2010 and entered on 8 October 2010.
3.In place of the orders referred to in order 2, make the following orders:
1)Verdict for the defendant.
2)The plaintiff pay the defendant's costs of the proceedings.
4.The respondent pay the appellant's costs of the appeal but should have a certificate under the Suitors' Fund Act 1951.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - negligence - motor vehicle accident - learner driver - content of duty of care owed by voluntary supervisor to learner driver - vehicle travelling well under speed limit - whether supervisor's failure to warn driver to reduce speed constituted breach of the duty of care.

APPEAL - whether primary judge made a finding as to speed of motor vehicle on entering the bend - whether primary judge erred in the finding on location of initial slip of vehicle - whether scope of duty correctly stated - whether primary judge's finding of breach of supervisor's duty was correct - whether primary judge erred in not finding that vehicle was travelling at speed significantly greater than 70 kph on entering the bend.
Legislation Cited:

Civil Liability Act 2002
Driving Instructors Act 1992
Evidence Act 1995

Driving Instructors Regulation 2003
Driving Instructors Regulation 2009
Road Rules 2008
Road Transport (Driver Licensing) Regulation 1999
Road Transport (Driver Licensing) Regulation 2008
Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999
Cases Cited:

Chang v Chang (1974) 48 ALJR 362
Cook v Cook [1986] HCA 73; 162 CLR 376
Imbree v McNeilly [2006] NSWSC 680
Imbree v McNeilly [2008] HCA 40; 236 CLR 510
McNeilly v Imbree [2007] NSWCA 156; 47 MVR 536
Neindorf v Junkovic [2005] HCA 75; 222 ALR 631
Ricketts v Laws (1988) 14 NSWLR 311
Texts Cited:
Category: Principal judgment
Parties:

Andrew John Thornton (Appellant)
Madeleine Louise Sweeney bhnf Norma Bell (Respondent)
Representation
- Counsel:

R R Stitt QC, D M Wilson and C Gleeson (Appellant)
B M Toomey QC and P Frame (Respondent)
- Solicitors:

Hunt & Hunt (Appellant)
Matthews Folbigg Lawyers (Respondent)
File number(s): CA 2008/289516-002
Decision Under Appeal
- Court / Tribunal:
- Before: Fullerton J
- Date of Decision: 10 September 2010
- Citation: Sweeney v Thornton [2010] NSWSC 1030
- Court File Number(s) SC 2008/20362
Publication Restriction:

Continue reading Thornton v Sweeney

Sign in free to access the full text

Details
AGLC
Thornton v Sweeney [2011] NSWCA 244
Case
[2011] NSWCA 244
Decision Date

CaseChat Overview and Summary

In *Thornton v Sweeney*, the Court of Appeal of New South Wales considered an appeal from a decision of the primary judge concerning a motor vehicle accident. The dispute arose from a collision involving a learner driver and her voluntary supervisor. The core of the disagreement centred on whether the supervisor had breached their duty of care to the learner driver.

The legal issues before the Court of Appeal included whether the primary judge had made a correct finding regarding the speed of the vehicle as it entered a bend, the location of the initial slip of the vehicle, and the scope of the duty of care owed by a supervisor to a learner driver. Specifically, the court had to determine if the supervisor's failure to warn the learner driver to reduce speed constituted a breach of that duty, and whether the primary judge erred in finding a breach or in not finding that the vehicle was travelling at a speed significantly greater than 70 kph when entering the bend.

The Court of Appeal allowed the appeal, setting aside the orders made by the primary judge. The court reasoned that the primary judge had erred in their findings. The appeal court concluded that the supervisor did not breach their duty of care to the learner driver. Consequently, a verdict was entered for the defendant, and the plaintiff was ordered to pay the defendant's costs of the proceedings. The respondent was ordered to pay the appellant's costs of the appeal, with a certificate granted under the *Suitors' Fund Act 1951*.

Orders

Orders of the court

1.Appeal allowed.

2.Set aside orders 1, 2 and 3 made by Fullerton J on 10 September 2010 and entered on 8 October 2010.

3.In place of the orders referred to in order 2, make the following orders:

1)Verdict for the defendant.

2)The plaintiff pay the defendant's costs of the proceedings.

4.The respondent pay the appellant's costs of the appeal but should have a certificate under the Suitors' Fund Act 1951.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.