Judgment date: 10 September 2010. Sweeney v Thornton  NSWSC 1030. Supreme Court of New South Wales.1
- A supervising driver has a duty to give a learner driver ongoing instructions regarding his or her speed and control of the vehicle.
- The supervising driver's duty extends to varying those instructions for changing circumstances.
- Where a learner driver approaches a corner at excessive speed, taking into account his or her inexperience, the geometry of the bend and the weather conditions, the supervising driver has a duty to intervene by instructing the learner driver to slow down.
This case involved a claim by a learner driver against her instructing driver in negligence.
On 27 August 2005, the plaintiff was driving under the defendant's supervision in Tuncurry when she lost control of her vehicle on a bend and collided with a tree. The plaintiff was 16 years of age at the time of the accident. The defendant held an unrestricted driver's licence, but was aged 21 on the day of the accident.
As a result of the accident, the plaintiff suffered significant traumatic brain injury together with a range of other orthopaedic and internal injuries.
The plaintiff alleged that the defendant breached his duty of care, as the supervising driver, by failing to properly supervise, instruct and direct her with regard to the appropriate speed at which she should negotiate the bend in the roadway, noting the tight bend and the wet conditions. The plaintiff argued that her speed of 70 kph was not a safe speed given the geometry of the corner, the wet conditions and her inexperience.
The defendant accepted that he was under a duty, as a casual supervisor, to instruct, guide and direct the plaintiff as to the manner of driving as determined by him to be necessary, from time to time, during the period of supervision. The defendant accepted that he was under a duty to vary the content of his instructions and directions to account for changing driving conditions.
However, the defendant argued that the accident was not caused by excessive speed, but by the plaintiff simply losing control, most likely as a result of her overreaction to irregularities in the road surface within the bend. The defendant argued that this was manifested by her overcorrecting by steering to the right, when the rear of the vehicle moved slightly out to the right, and then by her overcorrection to the left, resulting in the vehicle fishtailing.
The defendant argued that 70 kph was a safe speed for the bend. As such, there was no obligation to intervene by giving further instructions.
The primary issue for determination by the Supreme Court was whether the plaintiff's speed was excessive for the circumstances and whether the defendant did anything to intervene.
Having considered the evidence, Fullerton J concluded that negligence had been established. His Honour reasoned, at paragraph 84, as follows:
At paragraphs 90 and 91, Fullerton J accepted that the defendant's failure to intervene with an instruction to slow down was causative of the subsequent accident:
There is no evidence, even on the defendant's case, that he said or did anything. While on his case this is said to be explained by the narrowness of the window of opportunity, I am inclined to the view that his tiredness and related lack of focus is the probable (or a probable) explanation. This is again a finding I consider open to me where the defendant gave no evidence which may have otherwise satisfactorily addressed the issue."
Finally, notwithstanding excessive speed, Fullerton J found no contributory negligence on the part of the plaintiff. His Honour stated at paragraph 93:
On this basis, judgment was entered for the plaintiff with no reduction for contributory negligence.
This case demonstrates the high standard of care required of a supervising driver. The supervising driver's duty extends to giving constant and updated instruction to the learner driver, taking into account the road and traffic conditions, the weather conditions and the level of the learner's inexperience.
The case also demonstrates that even where excess speed has contributed to a learner driver losing control, the blame for the excessive speed may be laid at the feet of the supervising driver, with no blame (in the form of contributory negligence) attaching to the learner.
1. Fullerton J
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