Thornton v Sweeney [2011] NSWCA 244

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Thornton v Sweeney [2011] NSWCA 244 Hearing dates: 27 June, 1 July 2011 Decision date: 23 August 2011 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