Imbree v McNeilly; McNeilly v Imbree

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ.,Gummow,Hayne,Kiefel JJ.,Kirby J.,Heydon J.,Crennan J.
• Judgment Date: 28 August 2008
• Neutral Citation: [2008] HCA 40,2008-0828 HCA A
• Court: High Court
• Docket Number: S43/2008 & S392/2007
• Date: 28 August 2008

Paul Anthony Imbree

Appellant

and

Jessie Mcneilly & Anor

Respondents

Jessie Mcneilly & Anor

Applicants

and

Paul Anthony Imbree

Respondent

[2008] HCA 40

Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ

S43/2008 & S392/2007

HIGH COURT OF AUSTRALIA

Imbree v McNeilly

Negligence — Standard of care — Definition of standard — Where unskilled and inexperienced driver with passenger who, aware of driver's lack of skill and experience, has undertaken to supervise driving — Whether ‘special relationship’ between driver and supervising passenger such that standard of care required of driver in respect of supervising passenger is merely care reasonably to be expected of unqualified and inexperienced driver in the circumstances, rather than care to be expected of a reasonable driver — Whether Cook v Cook (1986) 162 CLR 376 should still be followed.

Negligence — Standard of care — Relevance of compulsory third party insurance to definition of standard of care in negligence in motor vehicle context.

Insurance — Motor vehicles — Compulsory third party insurance — Compulsory provisions applicable throughout Australia — Relevance of such insurance to definition of standard of care in negligence in motor vehicle context — Whether such insurance immaterial to standard of care to be expected of learner driver — Whether common law of negligence affected in relevant way by existence of compulsory third party insurance.

Words and phrases — ‘compulsory third party insurance’, ‘duty of care’, ‘proximity’, ‘special relationship’, ‘standard of care’.

Representation

A S Morrison SC with M R Hall and A J Stone for the appellant in S43/2008 and the respondent in S392/2007 (instructed by Abrahms Turner Whelan Family Lawyers)

K P Rewell SC with M A Cleary for the respondents in S43/2008 and the applicants in S392/2007 (instructed by TL Lawyers)

ORDER

• 1. Appeal allowed with costs.

• 2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 2 July 2007 and 23 July 2007.

• 3. The parties have 7 days from the date of this order to file and serve agreed minutes of the consequential orders to be made.

• 4. In default of agreement upon the consequential orders to be made, the parties have 14 days from the date of this order to file and serve written submissions as to the form of consequential orders to be made.

1 Gleeson CJ. I have had the benefit of reading in draft form the reasons for judgment of Gummow, Hayne and Kiefel JJ. I agree with the orders proposed by their Honours, and with their reasons for those orders.

2 The relationship that was said in Cook v Cook1 to be special, and to require a departure from the normal objective standard of care, was that ‘between a driver who is known to be quite unskilled and inexperienced and a passenger who has voluntarily undertaken to supervise his or her driving efforts.’ 2 The injured passengers in Cook v Cook, Nettleship v Weston3, and the present case, were not professional or qualified teachers. The occasion for the supervision was purely social. In practice, many, perhaps most, supervisors of learner drivers are relatives or friends acting in a voluntary capacity. In this case, as in Cook v Cook, the driver needed the supervising passenger's permission to drive the car. That permission was given subject to a stipulation that the driver should not exceed a certain speed. That is not uncommon. The ordinary traffic laws impose speed limits on inexperienced drivers. It is a basic precaution often adopted in informal situations of instruction or supervision.

3 There may be any number of ways in which personal attributes, permanent or temporary, may affect a driver's capacity to exercise care for the safety of others. Knowledge of such attributes may be relevant to contributory negligence, or to a defence of voluntary assumption of risk, but the fact of such knowledge is not normally treated as a defining aspect of the circumstances, so as to modify the care that is required as a legal obligation. It was not so treated by the plurality in Cook v Cook. What, then, of the additional factor of undertaking supervision of an inexperienced driver?

4 In the view of the plurality in Cook v Cook, even though all the passengers in a car may be aware of a driver's inexperience, it is generally only the supervising passenger to whom the lower standard of care is owed 4. I say ‘generally’ because the reasons in Cook v Cook5 say that in rare cases the relationship between driver and passenger may fall into the special category postulated. There is nothing rare about a passenger knowing that a driver is inexperienced. There are, however, degrees of inexperience. In the ordinary case, the central feature of the relationship between the driver of a car and all the

passengers, including a supervisor, is the vulnerability of the passengers. (An extraordinary case may be, for example, one in which the driver is driving under the legal or practical compulsion of the passenger.) The driver of a car has the capacity to cause death or serious injury because of the nature of the activity undertaken. If a passenger fails to take reasonable care for his or her own safety, the principles of contributory negligence apply. According to the argument for the respondents, logic demands recognition that a person who is being supervised by another owes a lower standard of care to the supervisor than to anybody else. The appellant's case is that logic demands no more than a recognition that, depending upon the circumstances, the supervisor may be more likely than others to be affected by contributory negligence. The second seems to me the better view.

5 It will be necessary to return to the separate reasons of Brennan J in Cook v Cook. Those reasons attached decisive significance, not to the passenger's having undertaken to supervise the driver, but to the passenger's knowledge that the driver was inexperienced 6. It appears that, in the present case, Brennan J would not have distinguished, in terms of the standard of care, between the various passengers, all of whom knew of the driver's lack of experience.

6 Underlying the plurality reasons was a question of the relevance of skill to care. Taking care for the safety of another may involve the exercise of skill, caution, alertness, physical mobility and other qualities. These may interact. They may be missing, or temporarily or permanently diminished, to a greater or lesser degree. In the first edition of Sir Frederick Pollock's The Law of Torts7, the learned author said: ‘Due care and caution … is the diligence of a reasonable man, and includes reasonable competence in cases where special competence is needful to ensure safety.’ If an activity, in order to be performed safely, requires a certain degree of skill, undertaking the activity without the requisite skill may itself be a form of negligence 8. While the ability to drive a motor car is nowadays a common skill, it requires a degree of technical competence. This is recognised by legislation, in all parts of Australia, which regulates learning to drive. Under such legislation, an unrestricted licence to drive is gained only over time, and by degrees, and the restrictions to which a holder of a restricted licence may be subject may include such matters as speed and alcohol consumption.

7 It was not suggested in this case (or in Cook v Cook or in Nettleship v Weston) that the negligence of the driver consisted in undertaking the driving in the first place. There may be circumstances in which a person who takes control of a motor car is so lacking in competence that the act of taking control is itself negligent. Where that would leave an instructor, or supervisor, or other passenger, who directed or permitted the act is not the present problem. According to the circumstances, it could mean that there is no duty of care, or voluntary assumption of risk, or a high degree of contributory negligence, or an absence of causation.

8 In a case, like the present, where it is not claimed that there was such a degree of incompetence, resulting from inexperience, as to make taking control of the vehicle itself an act of negligence, then the hypothesis is that the driver, although inexperienced and potentially reliant on advice and information, was capable of driving the vehicle safely. In fact, in this case the first respondent drove safely for a substantial distance. In some respects, it may have been reasonable to expect him to be more cautious than an experienced driver. It was foreseeable that circumstances might arise in which his lack of experience would increase the risk of an accident. Yet he chose to drive. He thereby took on the capacity to cause death or serious injury to his passengers and others, and the legal responsibility that went with it.

9 Inexperience is one of many attributes that may affect a driver's ability to avoid danger. As was pointed out by counsel for the appellant, a visitor from overseas, who had never previously driven on the left side of the road, or across a desert, may be described as inexperienced if placed in the same situation as the driver in this case. Many other factors may cause impairment of driving skills, in varying degrees. The question is whether, as a matter of legal principle, there is sufficient reason to single out inexperience, or to treat the relationship between an inexperienced driver and a supervisor as modifying the ordinary, objectively expressed, standard of care.

10 To describe a case as special, or exceptional, implies existence of a principle by which it can be recognised, and distinguished from the ordinary. The plurality reasons in Cook v Cook accepted that, as a general rule, the standard of care owed by a driver to someone who might foreseeably be injured by lack of care is objective...