Judgment date: 23 August 2011
Thornton v Sweeney  NSWCA 244
Court of Appeal New South Wales1
- 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  HCA 40
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