June 2024


Injured backpacker’s appeal rejected

By Resolve Editor Kate Tilley

The WA Appeal Court has rejected an appeal by a Scottish backpacker who argued that the lack of a working speedo on a loan vehicle caused a crash in which she was severely injured.

In the WA District Court, Caroline Davie argued the owner of the backpacker hostel at which she was staying in rural WA, Darryl June Manuel, was liable for her injuries that occurred when the vehicle she was driving overturned on a gravel road en route to a farm where she and other backpackers were working because the speedo did not work so she did not know the vehicle’s speed.  

Ms Davie argued Ms Manuel had a common law or contractual duty to ensure the motor vehicle she provided was roadworthy, free of defects that affected safety, and reasonably safe for use on roads the vehicle would travel on to reach farm work Ms Manuel had arranged.

Ms Davie claimed the lack of a working speedometer caused or materially contributed to the accident that resulted in her traumatic injuries.

Ms Manuel said there was no contractual relationship between her and Ms Davies about the motor vehicle. While she agreed she owed Ms Davies a duty of care on ‘neighbour principles’, she disputed that the speedo did not work, that she ought to have known it did not work, and that the lack of a working speedo caused the accident.

The Appeal Court found there was no error of law in the District Court judgement. It also rejected an attempt to rely on the rule of evidence in cross-examination known as the Browne v Dunn rule. The rule followed an 1893 English Court of Appeal decision, which established that when a witness is giving evidence and a party intends to call evidence that contradicts them, that party must put the substance of that contradictory evidence to the witness during cross-examination and give them the opportunity to comment on it.

Working holiday

Ms Davie arrived in Australia in November 2014 on a working holiday. In late May 2015, she travelled to Ms Manuel’s Stonehaven Poodles and Backpackers, near Arthur River, an area where Ms Manuel had been a farmer for 47 years. She and her husband lived nearby.  Ms Davie needed to perform rural work for three months to enable her to extend her working visa for a further 12 months.

People staying at Stonehaven had opportunities to do farm work in the area after farmers notified Ms Manuel of potential opportunities which she shared with the backpackers.

Some farms were up to 100km from the backpacker hostel, and Ms Manuel had two cars she would lend the backpackers. The arrangement was that Ms Manuel was responsible for maintaining and servicing the cars and the backpackers were responsible for the petrol. One was a 1992 Toyota Corolla hatchback with a manual transmission, purchased 4-1/2 months before the 26 June 2015 accident.

Ms Davie was driving with Wei Huang (known as Jamie) in the passenger seat and Oleg Lich in the backseat. Ms Davie had previously driven the car or been a passenger in it. The farm they were travelling to was about 100km away. Ms Davie and Ms Huang wore seat belts; Mr Lich did not.

Most of the journey was on sealed roads, until Ms Davie turned onto the gravel Foley Road. When negotiating a sweeping right‑hand bend, the car began to slide and ultimately rolled and came to a stop upside down on its roof, facing in the opposite direction. The accident was about 2km-3km from the destination farm.

Ms Davie was trapped inside the car. Mr Lich ran to the farm for help and Ms Davie was airlifted to hospital in Perth. She sustained severe injuries, including spinal fractures resulting in incomplete tetraplegia.

Ms Davie argued the car was unroadworthy, the speedo was not working, and Ms Manuel had placed her safety at risk in that her ability to assess her response to wet conditions on an unsealed road was adversely affected because she had no reliable indication of her actual speed.

Duty of care

At trial, Ms Manuel accepted she owed anyone using the car with her permission a duty of care to ensure the car was fit for use. But she denied she had breached that duty, did not accept that the speedo did not work, and denied Ms Davie had asked for the speedo to be fixed.

Ms Manuel argued there was no evidence about the cause of the accident, so it could not be concluded that speed was a cause. There was no evidence on Ms Davie’s speed at the time and she had given evidence she was “driving to the conditions”, so knowing the precise speed would not have changed her speed. Therefore, there was no evidence the lack of a working speedo caused or materially contributed to the accident. She also argued contributory negligence by Ms Davie.

Passenger Mr Lich did not give evidence and was not cross-examined but provided two statements. The second, dated 6 August 2015, was given to a private investigator engaged by Ms Manuel. It said, in part: “The one thing that did not work in the vehicle and that was never fixed in the entire time I was there was the speedometer. It did not work and it was very difficult to judge speed in the vehicle. Caroline was driving normally but maybe a little fast on the gravel road. She was in control however and I was comfortable and relaxed but, at one point, I did ask her not to drive in the middle of the gravel road and more to the left.”

The trial judge found Ms Manuel had a common law duty of care to ensure the car would be properly maintained such that it could be safely driven, and such that it was free from defects that affected safety. She found the speedo was not working before the accident but was not satisfied Ms Davie had complained about it. The appeal focused on factual causation.

Trial Judge Linda Petrusa said the evidence she had “suggests that at some point whilst negotiating a right-hand sweeping bend the car began to slide. Mr Lich’s evidence was the car first slid to the right. As a matter of commonsense this is consistent with a car moving too quickly around the right-handed bend”.

The Appeal Court judges agreed with Judge Petrusa’s three key findings. She did not accept Ms Davie’s evidence about how she assessed her speed when driving the car, including by asking passengers for feedback.

Suggestion contrived

Nor did she accept Ms Davie’s evidence about how she would use a speedo generally when driving. Judge Petrusa accepted the general proposition that a driver will look at their speedo from time to time when driving, for example, in built-up areas where there are posted speed limits or when driving on unfamiliar roads and there is a recommended speed sign.

However, she said: “The suggestion implicit in Ms Davie’s evidence, that a driver makes decisions about speed based on the reading given by the speedometer, is contrived.”

Judge Petrusa also rejected Ms Davie’s submission there was support for her case in the differences between Mr Lich’s estimate of the speed she was driving (70‑80 kph) and her  evidence that she considered 40kph to be a safe speed to go around the bend. Judge Petrusa said:” Ican place no reliance on Mr Lich’s evidence about the speed of the car before or near the time of the accident.”

“Mr Lich was a rear seat passenger who was largely distracted by his phone and whose driving experience is entirely unknown [so] it is difficult to place any weight on his evidence about the speed of the car.”

On appeal, Ms Davies claimed the finding some of her evidence was ‘contrived’ showed a failure to comply with the Browne v Dunn rule because the trial judge concluded Ms Davie was untruthful or dishonest in her evidence but there was no cross‑examination to that effect.

The Appeal Court judges found the rule does not apply where a witness is on notice their evidence is contested. “The rule is concerned with substantive unfairness, and the rule must therefore be applied flexibly. Ordinarily, it will not be necessary to put to a party to the proceedings a matter which is clearly in issue.”

Davie v Manuel [2024] WASCA 21 (7 March 2024)

Davie v Manuel [2022] WADC 91 (26 October 2022)

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