Australia: Court relaxes the extent of a supervising driver's duty of care to a learner driver

Curwoods Case Note
Last Updated: 31 August 2011
Article by Jennifer Casperson and Renae Hamilton

Judgment date: 23 August 2011 

Thornton v Sweeney [2011] NSWCA 244

Court of Appeal New South Wales1

In Brief

  • A voluntary supervisor (as distinct from a licensed instructor), has a duty to take precautions that a reasonable person in the position of the voluntary supervisor would take to prevent harm to a learner driver arising out of his or her driving experience.
  • What precautions are reasonable depends on the circumstances of each case.
  • When assessing what precautions are reasonable, it is a material fact that a voluntary supervisor need not possess any qualifications (other than an unrestricted licence) and that the driving of the vehicle is primarily in the hands of the learner driver. 


This case involved an appeal from a decision of Fullerton J of the Supreme Court of New South Wales.

On 27 August 2005, the respondent was driving under the appellant's supervision in Tuncurry when she lost control of her vehicle on a bend and collided with a tree. The respondent was 16 years of age at the time of the accident. The appellant held an unrestricted driver's licence and was 21 years of age as at the day of the accident.

As a result of the accident the respondent suffered significant traumatic brain injury together with a range of other orthopaedic and internal injuries.

At first instance, the respondent alleged that the appellant 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. The respondent argued that her speed of 70 km/h was not a safe speed given the geometry of the corner, the wet conditions and her level of inexperience.

At first instance, her Honour accepted that the appellant's failure to intervene with an instruction to slow down was causative of the subject motor vehicle accident. Her Honour concluded that the respondent had approached and entered the bend at a speed that was not reasonable nor safe and there was no evidence that the appellant took any steps at all to instruct or direct to guide her as to an appropriate speed to enter and negotiate the bend in the wet. 

Court of Appeal Decision

The appellant advanced 6 distinct challenges to her Honour's findings on liability, however, the most significant of these was whether or not the appellant breached his duty of care to the respondent.

The appellant contended that Fullerton J applied the wrong standard and there was no evidence to support the finding that the appellant had breached his duty of care. 

Sackville AJA, with whom Campbell JA and Tobias AJA agreed, provided the leading judgment. His Honour concluded that whilst ultimately Justice Fullerton did not misstate the relevant principles, in his opinion, the evidence did not support a finding that the appellant breached his duty of care to the respondent.

His Honour noted that it was not correct to say that the appellant was under an obligation to adjust and vary his instructions and directions to account for any changed driving conditions during the period of his supervision.

At paragraph 115, his Honour stated the following:

"The relevant question is whether the appellant exercised the care that a reasonable person in his position as a voluntary supervisor would have taken in the circumstances. Applying that standard the appellant would not necessarily be required to vary the content of his directions and instructions to account for any changed driving conditions." 

However, his Honour noted that Justice Fullerton correctly took into account that a supervisor was required to prevent any breaches of the Road Rules or avert any threatened harm. His Honour also noted that her Honour had correctly appreciated the distinction between a casual supervisor and a licensed professional instructor. 

Looking at the specific facts of the case, his Honour concluded that, on the evidence, it was accepted that the respondent's approaching speed was 70 km/h. Considerations such as the respondent was travelling 10 km below the speed limit applicable to a learner driver and 30 km below the speed limit applicable to licensed drivers were relevant. There was nothing to indicate to the appellant that the respondent was driving at a speed or in a manner contravening the Road Transport Legislation, nor was there any issue to have alerted the appellant that the respondent's speed was such that she should have been told to slow down before entering the bend. 

In addition (as distinct from the case of Imbree v McNeilly2), there were no advisory or warning signs on the road to indicate that the bend in question should be approached with particular caution or at speed below the relevant limit which was 100 km/h.

At paragraph 133 of his Judgment his Honour stated the following:

"The evidence does not establish that a voluntary supervisor, acting reasonably would have considered that the configuration of the bend or the driving conditions posed such as risk that instructions or guidance should have been given to the respondent at any stage of the journey to slow down below 70 km/h as she approached the bend. The requirement of s 5B in (1C) of the Civil Liability Act is not satisfied."

  A verdict for the appellant was granted and the respondent was ordered to pay the appellant's costs of the proceedings.


The decision relaxes the standard of care required of a supervising driver, to bring it in line with the ratio in Imbree v McNeilly. Whilst the supervising driver still has a duty of care which extends to giving direction to a learner driver, it is incorrect to state that they must give directions to account for any change of driving conditions during the period of supervision. As always, the requirements to give directions will depend on the facts of the case. 

1 Campbell JA, Sackville AJA and Tobias AJA

2 [2008] HCA 40

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.