Australia: Extent Of Supervising Driver's Duty Of Care Judicially Considered

Curwoods Case Note
Last Updated: 11 October 2010
Article by Peter Hunt

Judgment date: 10 September 2010. Sweeney v Thornton [2010] NSWSC 1030. Supreme Court of New South Wales.1

In Brief

  • 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.

Supreme Court

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:

"...I am persuaded, on the probabilities, that the plaintiff approached and entered the bend at a speed that was not reasonable or safe having regard to her level of experience and the wet condition of the roadway. That being the case, and where there is no evidence that the defendant took any steps at all to instruct or direct or to guide her as to an appropriate speed to enter and negotiate the bend in the wet (sufficiently early or at all), I am satisfied that he breached his duty of care entitling the plaintiff to a verdict in her favour."

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:

"I accept that any analysis as to what action the plaintiff may have taken if the defendant had intervened with a direction such as "ease off" or "brake" in the time available prior to the slip of vehicle being irrecoverable, involves an assessment of a hypothetical in circumstances where the vehicle was at risk of being irretrievably out of control, and the plaintiff was likely to have been in a state of panic as a result. I am however satisfied that the defendant, acting reasonably, could have taken the steps [the plaintiff's expert] suggests in an attempt to defuse the panic, pacify the situation and either take control of the vehicle or bring the vehicle into control.

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:

"Her duty of care, in that connection, is referable to her obligation to drive within the statutory restraints imposed on her as a learner driver (not only as to speed, which I am not satisfied she exceeded in any event) and to accept instruction, guidance and direction from her supervisor at all times. There is nothing to indicate she drove in breach of that duty in any respect, in fact to the contrary, as reflected in the defendant's account and Ms Taylor's account of her driving in the first driving episode and nothing to indicate that the defendant gave her any instruction, guidance or direction on approach to or proximate to the collision which she refused or failed to follow."

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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