Imbree v McNeilly - [2008] HCA 40

HIGH COURT OF AUSTRALIA
GLEESON CJ
GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ
Matter No S43/2008
PAUL ANTHONY IMBREE  APPELLANT
AND
JESSIE McNEILLY & ANOR   RESPONDENTS
Matter No S392/2007
JESSIE McNEILLY & ANOR  APPLICANTS
AND
PAUL ANTHONY IMBREE   RESPONDENT
Imbree v McNeilly
McNeilly v Imbree
[2008] HCA 40
28 August 2008
S43/2008 & S392/2007
ORDER
Matter No S43/2008
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.

Matter No S392/2007
Application refused with costs.
On appeal from the Supreme Court of New South Wales
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)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
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".

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.
The relationship that was said in Cook v Cook[1] 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 Weston[3], 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.
[1](1986) 162 CLR 376; [1986] HCA 73.
[2](1986) 162 CLR 376 at 388.
[3][1971] 2 QB 691.
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?
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 Cook[5] 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.
[4](1986) 162 CLR 376 at 382-383.
[5](1986) 162 CLR 376 at 386.
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](1986) 162 CLR 376 at 393-394.
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 Torts[7], 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]Pollock, The Law of Torts, (1887) at 359.
[8]Salmond, The Law of Torts, (1907) at 23-24. See also Heuston and Buckley, Salmond and Heuston on the Law of Torts, 21st ed (1996) at 223-224.
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.
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.
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.
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 and impersonal, and is not modified by the personal attributes of the driver, which might include age, skill, alertness, physical or mental health, sobriety or even aspects of temperament, some of which, in the case of the one driver, may alter, perhaps over a short time. This is so because the care that is reasonably required of the driver of a car is a product of the harm that can result from failure to exercise care, and because the alternative would be an infinitely variable standard, responding to the particular combination of attributes possessed by a driver at any given time[9]. It was concluded in Cook v Cook[10] that, because the absence of skill, or experience, was the reason for the instruction or supervision that was undertaken, it was irrational to impose a standard of care owed by the driver to the instructor or supervisor that was not modified to take account of the lack of skill or experience. That, with respect, is not at all obvious. The factors described as special may be significant, in a given case, for issues such as the existence of a duty of care, contributory negligence, voluntary assumption of risk, or causation. Given, however, that it is accepted that the driver owes a duty to the supervisor to take reasonable care for the supervisor's safety; given the wide variability in degrees of inexperience; and given the interaction of experience, or lack of it, with other personal attributes that bear upon safe driving, it is not irrational to impose an objective standard of care rather than to attempt to adjust the standard of care to the level of experience of an individual driver.
[9]See Joslyn v Berryman (2003) 214 CLR 552 at 564 [30] per McHugh J; [2003] HCA 34.
[10](1986) 162 CLR 376 at 384.
An alternative view, preferred by Brennan J in Cook v Cook, is that knowledge that the driver was inexperienced (in this case, a knowledge shared by all the passengers) is the key factor, with the result that the standard of care is "the standard of an inexperienced driver of ordinary prudence."[11] This approach, however, also raises the difficulty mentioned above. In Nettleship v Weston[12], Megaw LJ pointed to the problem of complex and elusive factors that might affect a particular person's ability to take care. I see no answer to the problem. It may be demonstrated by reference to The Insurance Commissioner v Joyce[13]. Dixon J, in successive sentences[14], referred to a "drunken driver" and a "driver affected by drink". It is now generally accepted that even a modest amount of alcohol may cause impairment of a driver's capacity, and the extent of the impairment may vary with other attributes of the driver, perhaps including experience.
[11](1986) 162 CLR 376 at 394.
[12][1971] 2 QB 691 at 708-709.
[13](1948) 77 CLR 39; [1948] HCA 17.
[14](1948) 77 CLR 39 at 57.
The difficulty of applying a standard of an inexperienced driver of ordinary prudence is shown by the decisions at trial and in the Court of Appeal in this case. Four judges, bound by authority to apply that standard, and to work out the extent to which the accident was the result of inexperience, as compared with some other deficiency, produced four different results.
I agree with Gummow, Hayne and Kiefel JJ that Cook v Cook should not be followed, for the reasons and with the consequences they assign.
It was not argued for the appellant that a reason for not following Cook v Cook is that the respondents were insured under a statutory scheme of compulsory insurance. Nor was there any argument about whether it would have made a difference if the respondents had been voluntarily insured, or uninsured, or if their insurer had become insolvent[15]. The insurance that applied was, of course, insurance against legal liability for negligence. The statutory insurance regime operated upon – it did not create – the legal liability. Schemes of compulsory insurance for third party liability in motor accidents are not new. They existed at the time of Cook v Cook, and for a long time before then.
[15]The recent financial failure of a major Australian insurance company serves as a reminder that insurance is not necessarily synonymous with cover.
It is useful to consider the detail of Lord Denning MR's reasoning in Nettleship v Weston[16] in this respect. His Lordship examined the responsibility of a learner driver towards an instructor after first having discussed three other aspects of the driver's responsibility: his or her responsibility in criminal law; his or her responsibility to other persons on or near the highway; and his or her responsibility towards passengers in the car. His Lordship was addressing a matter of legal coherence[17].
[16][1971] 2 QB 691 at 697-703.
[17]cf Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59.
As to the learner driver's responsibility in criminal law, insurance had nothing to do with it. In that respect, as his Lordship noted, it is no defence for a learner to be doing his or her incompetent best[18].
[18][1971] 2 QB 691 at 698-699.
As to the learner driver's responsibility to persons on or near the highway, his Lordship again noted that it is no excuse that a defendant was only a learner. There was no attenuation of the duty of care. It was in that connection that his Lordship referred to the "high standard" imposed largely as "the result of the policy of the Road Traffic Acts."[19] In that part of his reasons his Lordship refers to five decided cases. The first[20] was a case about negligent management of a tea room. The second[21] was a case of damage caused by a skidding car. There is no reference to insurance, or to the policy of any legislation. The third[22] was a case of a pedestrian whose arm was bruised, coat torn, and shopping bag damaged by the protruding handle of a motor van. There was "abundant evidence"[23] of negligence of the driver. The plaintiff was awarded £10 damages. Again there was no reference to insurance, or the policy of any legislation. The fourth[24] was an Admiralty case about a collision between ships. There was no reference to insurance. The fifth[25] was a case of personal injuries resulting, not from negligent driving, but from brake failure of an inadequately maintained lorry. There was no reference to insurance. None of the motor vehicle cases referred to indicated, and none of them acknowledged, any "high standard", or addressed the problem of the inexperienced learner. Quite apart from those cases, however, his Lordship undoubtedly was correct to say that a learner's responsibility towards persons on or near the highway is not attenuated. The learner cannot say: "I was doing my best and could not help it." Having regard to the capacity of a motor vehicle to cause harm, and the vulnerability of others on or near the highway, that can be explained by considerations other than compulsory insurance. Indeed, it is probably the other way around: the capacity of a driver to injure others explains compulsory insurance. What is of present significance is that his Lordship referred to the policy of the Road Traffic Acts as a reason for requiring a high standard of care of drivers, not as a reason for declining to differentiate between learner drivers and others.
[19][1971] 2 QB 691 at 699.
[20]Glasgow Corporation v Muir [1943] AC 448.
[21]Richley (Henderson) v Faull. Richley Third Party [1965] 1 WLR 1454; [1965] 3 All ER 109.
[22]Watson v Thomas S Whitney & Co Ltd [1966] 1 WLR 57; [1966] 1 All ER 122.
[23]Watson v Thomas S Whitney & Co Ltd [1966] 1 WLR 57 at 60; [1966] 1 All ER 122 at 124.
[24]The Merchant Prince [1892] P 179.
[25]Henderson v Henry E Jenkins & Sons [1970] AC 282.
His Lordship then went on to consider the responsibility of a learner driver towards passengers in the car, and again observed that the standard of care was objective[26].
[26][1971] 2 QB 691 at 700-701.
Having done all that, his Lordship asked whether the care owed to a passenger who was also an instructor was less than the care owed according to the criminal law, or the care owed to people on or near the highway, or the care owed to other passengers. He answered that question in the negative, without further reference to insurance[27].
[27][1971] 2 QB 691 at 701-702.
The respondents in the present case appeared to accept that the standard of care owed by an inexperienced driver to other people on or near the highway, and to passengers in the car, except the supervising passenger, is objective. The question of principle to be decided is whether the position is different in relation to the supervising passenger.
The problem of the objectivity of the standard of care of an inexperienced person, or the comparative standards of care owed by an inexperienced person, or a person suffering from some other form of disability or impairment, and an "ordinary" person, is not one peculiar to the drivers of motor vehicles that are subject to a scheme of compulsory third party insurance. A similar problem would arise in many other contexts, where there is no compulsory insurance. If the answer to the problem in the present case depends upon the existence of compulsory insurance, then presumably a different answer would, or at least may, be given in a case where there is no compulsory insurance. The result is both "morally incoherent", as Professor Stapleton described it[28], and productive of legal confusion.
[28]Stapleton, "Tort, Insurance and Ideology", (1995) 58 Modern Law Review 820 at 825.

The law governing the legal rights and obligations of motorists in all parts of Australia, although it varies significantly between different jurisdictions, is a combination of common law and statute. In some jurisdictions, common law principles as to damages have been replaced by detailed statutory regulation. Without doubt, insurance is a major factor in the practical operation of the law of negligence as it applies to motor vehicle accidents, and the various schemes governing insurance against third party liability, some of which include government regulation of the market, reflect legislative policy of great social importance. It may be that Lord Denning understated the position when he said that the standard of care expected of drivers reflected legislative policy. It may be fair to say that, without the availability of reasonably affordable insurance, the application of the principles of the common law of negligence to the risks involved in driving a motor vehicle would mean that few people would drive. The common law makes a defendant liable for all the harm of which his or her negligence is a cause, however slight the moral culpability involved in the negligence, and however extensive the harm. Momentary inattention can be a cause of harm for which few motorists could afford to pay compensation. In the present case, the damages of the appellant were assessed at $9,563,731. The Australian States and Territories have not followed the New Zealand example of dealing with the problem as an issue of social security. The common law continues to apply, but with a heavy overlay, varying in its detail, of statutory prescription and modification. Compulsory third party insurance is one aspect of that overlay.
The question in the present case is one of common law principle. Is the standard of care owed by an inexperienced driver to a supervising passenger the same objective standard as that owed to third parties generally? That is a matter that could be regulated by statute[29]. There is no legislation relevant to these proceedings that touches the point. If the existence of a scheme of compulsory third party insurance is a reason for giving an affirmative answer, and not merely a basis for an inclination to be pleased with such an answer, then there must be a principled explanation for that. If it were not for insurance, the common law would operate with intolerable harshness in its application to driving. That is a sound reason in public policy for legislative intervention. If it were not for third party insurance, it may be assumed that the first respondent would not have been permitted, and (at least if well informed) would not have dared, to drive at all on the occasion in question. Such insurance does not, however, provide a step in a process of reasoning towards an answer to the particular question that arises for decision in this appeal.
[29]See, for example, the Motor Accidents Compensation Amendment (Claims and Dispute Resolution)Act 2007 (NSW), which inserts s 141 in the Motor Accidents Compensation Act 1999 (NSW) with effect from 1 October 2008.
I agree that the appeal should be allowed, and consequential orders made as proposed by Gummow, Hayne and Kiefel JJ.
GUMMOW, HAYNE AND KIEFEL JJ. The appellant (Paul Anthony Imbree) allowed the first respondent (Jesse McNeilly[30]) to drive a four‑wheel drive station wagon[31] on Larapinta Drive in the Northern Territory, a gravel road between Kings Canyon and Hermannsburg. The first respondent was then aged 16 years and five months. As the appellant knew, the first respondent had little driving experience, he was not licensed to drive, and he did not hold any learner's permit. He lost control of the vehicle and the vehicle overturned. The appellant, then a front‑seat passenger, was seriously injured.
[30]Except in the title to the appeal in this Court, the first respondent's first given name is recorded as "Jesse". That spelling is adopted in these reasons
[31]The vehicle was owned by the appellant's employer, the second respondent to this appeal, but the appellant used the vehicle as if it were his own. The two respondents have been jointly represented at all stages of the litigation. No issue in this Court was said to require separate consideration of the position of the second respondent.
What was the standard of care that the first respondent (the driver) owed the appellant (the passenger)? Was it, as this Court held in Cook v Cook[32], "that which is reasonably to be expected of an unqualified and inexperienced driver in the circumstances in which the pupil is placed"? Or was it, as the appellant submitted, the same objective standard of care as a licensed driver?
[32](1986) 162 CLR 376 at 384 per Mason, Wilson, Deane and Dawson JJ; [1986] HCA 73.
These reasons will show that the standard of care which the driver (the first respondent) owed the passenger (the appellant) was the same as any other person driving a motor vehicle – to take reasonable care to avoid injury to others. The standard thus invoked is the standard of the "reasonable driver". That standard is not to be further qualified, whether by reference to the holding of a licence to drive or by reference to the level of experience of the driver. Cook v Cook should no longer be followed.
The facts
Before the accident which gives rise to this litigation, the appellant had had a great interest in four‑wheel drive trips in and around Australia. He had undertaken several off‑road trips to far north Queensland and to the Northern Territory. On the trip which leads to this litigation, the appellant was accompanied by two of his sons (Paul and Reece), an adult friend (Mr Ben Watson), and the first respondent (a friend of Paul Imbree junior). Paul Imbree junior was then aged 16 years and had just obtained a New South Wales learner's permit to drive a vehicle.
The appellant knew that the first respondent had previously driven a four‑wheel drive vehicle owned by his grandparents. The appellant knew however that the first respondent did not have a learner's permit. When the party travelled through Dubbo and Nyngan they tried to find an office of the Roads and Traffic Authority at which the first respondent could obtain a permit, but the offices were closed.
In the later part of their journey from New South Wales to the Northern Territory, the appellant allowed first his son Paul, and then the first respondent, to drive for about 30 to 40 minutes each. He told both that they should not exceed 80 kmh. Each drove uneventfully. The trip proceeded into the Simpson Desert and again the appellant allowed each of the two boys to drive on two occasions. This driving was in more challenging conditions and again it passed without concern. After visiting Ayers Rock and Kings Canyon, the party headed towards Hermannsburg and Alice Springs on Larapinta Drive. Initially the road was hilly and corrugated and the appellant and Mr Watson drove. When the terrain changed, and the road was what the appellant would later describe as "a very wide two lane dirt track with no significant corrugations compared to what [he had] struck earlier", he allowed first his son Paul, and then the first respondent, to drive.
When the first respondent drove, the appellant sat beside him in the front passenger seat. For a time the driving proceeded without any event out of the ordinary. Both the appellant and the first respondent then saw a piece of tyre debris on the road. Instead of straddling and driving over the debris, the first respondent steered the vehicle to the right. The appellant yelled at the first respondent, telling him to brake. He did not. When the vehicle was on the far right‑hand side of the road, the first respondent turned sharply to the left and accelerated. This caused the vehicle to roll over.
The appellant suffered spinal injuries that have rendered him tetraplegic.
The proceedings below
The appellant brought proceedings in the Supreme Court of New South Wales against the first respondent as driver and the second respondent as owner of the vehicle. The primary judge, Studdert J, gave judgment for the appellant[33]. His Honour rejected[34] the respondents' contention that the appellant had voluntarily assumed the risk of injury, found[35] that the first respondent had "behaved with carelessness over and above what could be attributed merely to inexperience", and further found[36] that the appellant had been contributorily negligent. The appellant's damages, assessed at more than $9.5 million, were reduced by 30 per cent on account of his contributory negligence.
[33]Imbree v McNeilly [2006] NSWSC 680.
[34][2006] NSWSC 680 at [51].
[35][2006] NSWSC 680 at [48].
[36][2006] NSWSC 680 at [86]-[87].
The respondents in this Court appealed to the Court of Appeal; the appellant cross‑appealed. Both the appeal and the cross‑appeal were allowed in part. The Court of Appeal (Beazley, Tobias and Basten JJA) considered[37] a number of issues that are not pressed in this Court. In particular, questions of illegality, voluntary assumption of risk, and quantum of damages, were considered by the Court of Appeal, but none of these questions is raised in this Court.
[37]McNeilly v Imbree (2007) 47 MVR 536.
All members of the Court of Appeal rightly treated this Court's decision in Cook v Cook as establishing that "[a]ctions which are fairly to be seen as the result of [a learner driver's] inexperience and lack of qualification rather than as having been caused by superimposed or independent carelessness did not, of themselves, constitute a breach of the duty of care"[38] which the learner driver owed to a licensed driver who was supervising the learner. The Court of Appeal divided in opinion about whether, in this case, the driver of the vehicle (the present first respondent) had breached the duty of care he owed his front‑seat passenger (the present appellant). The majority (Beazley JA and Basten JA) found[39] that the driver had been careless, but that the carelessness lay in swerving off the road rather than, as the primary judge had found, steering around the tyre debris. Beazley JA further found[40] the driver to have been careless in accelerating as he did. The third member of the Court (Tobias JA) concluded[41] that the driver's acceleration and over‑steering did not breach the standard of care of a driver with the limited skills and experience of this driver.
[38](1986) 162 CLR 376 at 388 per Mason, Wilson, Deane and Dawson JJ.
[39](2007) 47 MVR 536 at 538‑539 [13] per Beazley JA, 555‑556 [83] per Basten JA.
[40](2007) 47 MVR 536 at 538 [12].
[41](2007) 47 MVR 536 at 542 [29].
The Court of Appeal also divided in opinion about what apportionment of liability should be made on account of the contributory negligence of the present appellant as the instructor or supervisor of the first respondent as driver. Basten JA[42] assessed the appellant's contribution at two‑thirds; Beazley JA assessed[43] his contribution at one‑half. Tobias JA, who had concluded that the driver was not negligent, went on to consider contributory negligence and agreed[44] with Basten JA that the appellant's contribution should be assessed as two‑thirds.
[42](2007) 47 MVR 536 at 561‑562 [111].
[43](2007) 47 MVR 536 at 539 [15].
[44](2007) 47 MVR 536 at 546 [48].
Proceedings in this Court
By special leave, the appellant appeals to this Court. His central proposition was that the driver, the first respondent, should be held to have owed him the same objective standard of care as a licensed driver. He submitted that Cook v Cook should be overruled. Because, as he submitted, the Court of Appeal had applied the wrong standard of care, it followed that the apportionment of responsibility had miscarried. The appellant further submitted that the respondents had not shown that any contributory negligence of the appellant was a cause of the damage that he suffered. Finally, as an alternative argument, the appellant submitted that, in any event, the Court of Appeal should not have interfered with the primary judge's assessment of contributory negligence.
The respondents sought special leave to cross‑appeal. They submitted that although "the approach of this Court in Cook v Cook to the standard of care owed by a driver whose ability is compromised by a lack of skill and experience, or by some other factor, known to the plaintiff, is correct, [it] requires re‑statement in contemporary terms". The consequence of that re‑statement, so the respondents argued, would be that, consonant with the reasoning of Tobias JA in the Court of Appeal, the appellant's claim for damages should have been dismissed. That is, having regard to the appellant's knowledge of the first respondent's limited skills and experience, the latter's driving did not depart from the standard of care the appellant was entitled to expect the first respondent to exercise.
Cook v Cook
Cook v Cook was decided in 1986. It was one of a large number of decisions made by this Court during the 1980s about the law of negligence. Many of those cases focused upon duty of care. Thus this Court considered[45] what duty of care a public authority owed in exercising or not exercising its powers[46] and spoke of a "general dependence" upon public authorities to perform their functions with due care[47]. This Court also re‑expressed[48] the duty of care owed by an employer to an employee as a non‑delegable duty: a duty to ensure that reasonable care and skill was exercised[49]. And this Court rejected[50] a theory of concurrent general and special duties owed by an occupier of land to an entrant in favour of determining only whether, in all the relevant circumstances, the defendant owed a duty of care under the ordinary principles of negligence.
[45]Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41.
[46]See now Pyrenees Shire Council v Day (1998) 192 CLR 330; [1998] HCA 3; Romeo v Conservation Commission (NT) (1998) 192 CLR 431; [1998] HCA 5; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54.
[47]Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 464 per Mason J. See now Pyrenees Shire Council v Day (1998) 192 CLR 330 at 343‑345 [18]‑[20] per Brennan CJ, 385‑388 [157]‑[165] per Gummow J, 408‑412 [225]‑[232] per Kirby J; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 658‑660 [310] per Callinan J.
[48]Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61. See also The Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40.
[49]See, now, as to non‑delegable duties: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13; Scott v Davis (2000) 204 CLR 333; [2000] HCA 52; New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4.
[50]Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7.
These decisions about duty of care must be understood in their historical context. In 1977, in Anns v Merton London Borough Council[51], the House of Lords had formulated a two‑stage test for determining duty. In 1985, this Court rejected that approach[52] preferring, instead, to analyse questions of duty of care by reference to proximity. And for a time, both before and after the decision in Cook v Cook, proximity was seen as the unifying criterion of duties of care[53]. Many of the decisions about duty of care that have just been mentioned made extensive reference to proximity.
[51][1978] AC 728.
[52]Sutherland Shire Council v Heyman (1985) 157 CLR 424.
[53]Jaensch v Coffey (1984) 155 CLR 549 at 584 per Deane J; [1984] HCA 52. See Hill v Van Erp (1997) 188 CLR 159 at 176‑177 per Dawson J, 210 per McHugh J, 237‑239 per Gummow J; [1997] HCA 9.
By 1999[54], if not earlier, this Court had rejected proximity as a satisfactory tool for determining whether a defendant owed a duty of care. Further, the three‑stage approach described in Caparo Industries Plc v Dickman[55] and subsequently adopted by the House of Lords[56] was rejected[57] in this Court.
[54]Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36.
[55][1990] 2 AC 605 at 617‑618 per Lord Bridge of Harwich.
[56]Marc Rich & Co v Bishop Rock Marine Co Ltd [1996] AC 211.
[57]Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59.
The reasons of the plurality in Cook v Cook depended, in important respects, upon the application of notions of proximity. Proximity was seen as informing not just whether a duty of care was owed, but also the content of the duty of care that was owed. Thus, the plurality said[58] that:
"The more detailed definition of the objective standard of care for the purposes of a particular category of case must necessarily depend upon the identification of the relationship of proximity which is the touchstone and control of the relevant category."
That is, as their Honours went on to say[59]:
"[T]he more detailed definition of the content of that objective standard will depend upon the relevant relationship of proximity from which it flows and into which the reasonable person of the law of negligence must be projected; it 'is because that relation may vary that the standard of duty or of care is not necessarily the same in every case'[60]."
[58](1986) 162 CLR 376 at 382.
[59](1986) 162 CLR 376 at 382.
[60]The Insurance Commissioner v Joyce (1948) 77 CLR 39 at 56 per Dixon J; [1948] HCA 17.
It was on this footing that the plurality in Cook v Cook concluded[61] that:
"While the personal skill or characteristics of the individual driver are not directly relevant to a determination of the content or standard of the duty of care owed to a passenger, special and exceptional facts may so transform the relationship between driver and passenger that it would be unreal to regard the relevant relationship as being simply the ordinary one of driver and passenger and unreasonable to measure the standard of skill and care required of the driver by reference to the skill and care that are reasonably to be expected of an experienced and competent driver of that kind of vehicle."
Thus, because "it would be to state a half‑truth to say that the relationship was, if the pupil was driving, that of driver and passenger ... the standard of care which arises from the relationship of pupil and instructor is that which is reasonably to be expected of an unqualified and inexperienced driver in the circumstances in which the pupil is placed"[62].
[61](1986) 162 CLR 376 at 383.
[62](1986) 162 CLR 376 at 384.
In his separate reasons in Cook v Cook, Brennan J rejected[63] "a concept of proximity other than reasonable foreseeability of injury as a tool for analysis or as a practical criterion for determining the existence of a duty of care". It followed, in his Honour's opinion[64] that such a concept was not to be used "as a tool for analysis or a practical criterion for determining the standard of care required for discharging a duty of care". Nonetheless, Brennan J held that the circumstances out of which the duty of care owed by the learner driver to the instructor arose included the plaintiff's knowledge, when she accepted carriage in the vehicle, that the driver was inexperienced. It followed, in his Honour's view[65] that "the standard of care required to discharge the driver's duty in those circumstances is the standard of an inexperienced driver of ordinary prudence".
[63](1986) 162 CLR 376 at 393.
[64](1986) 162 CLR 376 at 393.
[65](1986) 162 CLR 376 at 394.
Reconsidering Cook v Cook
As Mason J said in State Government Insurance Commission v Trigwell[66], this Court "is neither a legislature nor a law reform agency". But this Court has long since held[67] that it can, and if appropriate will, reconsider its earlier decisions. In The Commonwealth v Hospital Contribution Fund[68], Gibbs CJ identified four matters which in that case justified departure from earlier decisions. Those considerations were summarised in John v Federal Commissioner of Taxation[69] as being that (a) the earlier decisions did not rest upon a principle carefully worked out in a significant succession of cases; (b) there were differences in the reasoning that led to the earlier decisions; (c) the earlier decisions had achieved no useful result but considerable inconvenience; and (d) that the earlier decisions had not been independently acted on in a manner which militated against reconsideration. The need to consider these matters is obvious. It is necessary to do that, however, with a clear recognition of more basic principles. In particular, it is necessary to recognise that, when a court of final appeal considers judge‑made law, "[w]hile stare decisis is a sound policy because it promotes predictability of judicial decision and facilitates the giving of advice, it should not always trump the need for desirable change in the law"[70] especially, we would add, if the change is necessary to maintain a better connection with more fundamental doctrines and principles.
[66](1979) 142 CLR 617 at 633; [1979] HCA 40.
[67]See, for example, The Tramways Case [No 1] (1914) 18 CLR 54 at 58 per Griffith CJ; [1914] HCA 15; Attorney‑General (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 243‑244 per Dixon J; [1952] HCA 2.
[68](1982) 150 CLR 49 at 56‑58; [1982] HCA 13.
[69](1989) 166 CLR 417 at 438‑439 per Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ; [1989] HCA 5.
[70]Perre v Apand Pty Ltd (1999) 198 CLR 180 at 216 [92] per McHugh J.

In so far as the reasoning of the plurality in Cook v Cook depended upon the application of notions of proximity, it is reasoning that does not accord with subsequent decisions of this Court denying the utility of that concept as a determinant of duty. Subsequent development of legal doctrine denies the continued existence of the foundation upon which the reasoning of the plurality appears to have rested[71]. This observation, however, does not conclude the issues that now arise. There are several reasons why that is so. First, the immediate question in this case concerns the content of the duty of care, not whether any duty of care should be found to exist. Secondly, it is to be noted that Brennan J arrived at substantially the same conclusion as the plurality about the content of the duty of care owed by a learner driver to the instructing or supervising driver, but expressly disclaimed reliance upon proximity. Thirdly, the reasoning of the plurality in Cook v Cook, which gave primacy in determining the content of the duty of care to identifying the relationship between the parties out of which the duty arose, reflected what had been said by Dixon J, in his dissenting reasons in TheInsurance Commissioner v Joyce[72], more than 30 years before proximity was identified as a concept unifying at least some aspects of the law of negligence.
[71]cf Lamb v Cotogno (1987) 164 CLR 1 at 11; [1987] HCA 47; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 613‑615 per Gummow J; [1996] HCA 38.
[72](1948) 77 CLR 39.
It follows, therefore, that simply to point to the frequency of reference to proximity in the plurality reasons in Cook v Cook, and couple that with the subsequent discarding of proximity as a tool for determining whether a defendant owes a duty of care, provides no sufficient basis for rejecting the principle that it established. It is necessary to look beyond the reliance on proximity reasoning.
The reasoning in Cook v Cook, of both the plurality and Brennan J, identified the factual consideration critical to the conclusion reached as being that the plaintiff knew that the driver was inexperienced. That is, what the plaintiff knew was held to affect the standard of care that the plaintiff could expect the learner driver to observe. Nonetheless, the standard of care was held to be an objective standard. That is, the relevant standard of care was identified not as what this plaintiff could reasonably have expected this defendant to have done or not done, but as what a particular class of defendants (within which this defendant fell) could reasonably be expected to do or not do. Thus, the plurality held that the standard of care in a particular case was not to be adjusted "by reference to the physical characteristics and expertise or the usual carefulness or otherwise of the particular driver"[73] (emphasis added). Rather, it was held[74] that:
"It is only when special and exceptional circumstances clearly transform the relationship between a particular driver and a particular passenger into a special or different class or category of relationship that the case will be one in which the duty of care owed by the particular driver to the particular passenger will be either expanded or confined by reference to the objective standard of skill or care which is reasonably to be expected of a driver to a passenger in the category of a case where that special or different relationship exists." (emphasis added)
The onus of establishing facts giving rise to such a special or different class or category was cast[75] upon the party asserting it.
[73](1986) 162 CLR 376 at 387.
[74](1986) 162 CLR 376 at 387.
[75](1986) 162 CLR 376 at 387.
There have been various statements in this Court to the effect that in many well‑settled areas of the law of negligence the existence of a duty of care and its content present no difficulty and that one such example concerns the responsibilities of a motorist on the highway to avoid causing injury to the person or property of another[76]. The reference to "special and exceptional circumstances" in the passage from Cook v Cook set out above invites the question why the relevant legal relationship should be regarded as any more specific than that of driver and passenger[77]. As Dias and Markesinis pointed out shortly after Cook v Cook was decided[78], the trend of English authority, including Nettleship v Weston[79], had been to eschew distinctions between categories of drivers of motor vehicles.
[76]Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 441‑442 per Gibbs CJ; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 289‑290 [103] per Hayne J; [2000] HCA 61; Vairy v Wyong Shire Council (2005) 223 CLR 422 at 443 [63] per Gummow J; [2005] HCA 62.
[77]See Kidner, "The variable standard of care, contributory negligence and volenti", (1991) 11 Legal Studies 1 at 12‑13.
[78]Tort Law, 2nd ed (1989) at 103‑104.
[79][1971] 2 QB 691.
Further, the translation of the particular knowledge of a plaintiff into the identification of a separate category or class of relationship governed by a distinct and different duty of care encounters various difficulties. These are both doctrinal and practical.
The fundamental reason why Cook v Cook should no longer be treated as expressing any distinct principle in the law of negligence is that basic considerations of principle require a contrary conclusion. No different standard of care is to be applied in deciding whether a passenger supervising a learner driver has suffered damage a cause of which was the failure of the learner driver to act with reasonable care.
After some elaboration of the basic considerations of principle to which reference is made above, it will be convenient to consider the significance for that elaboration of what was said, well before Cook v Cook, in Joyce.
A reasonable learner driver?
The basic considerations of principle may be stated as follows. First, the inquiry is about the applicable standard of care. Secondly, the standard to be applied is objective. It does not vary with the particular aptitude or temperament of the individual. Thirdly, it is, and must be, accepted that a learner driver owes all other road users a duty of care that requires the learner to meet the same standard of care as any other driver on the road. The learner may have to display "L‑plates" for all other road users to see, but that learner will be held to the same standard of care as any other driver in fulfilling the learner's duty to take reasonable care to avoid injuring other road users. Fourthly, it was not suggested in argument, and there is nothing in Cook v Cook that would suggest, that a learner driver owes a lesser standard of care to any passenger in the vehicle except the licensed driver who sits in the adjoining seat. In particular, it was not suggested that any knowledge of another passenger that the driver was inexperienced affects the standard of care that the driver must observe to avoid injury to that other passenger.
Knowledge of inexperience can thus provide no sufficient foundation for applying different standards of care in deciding whether a learner driver is liable to one passenger rather than another, or in deciding whether that learner driver is liable to a person outside the car rather than one who was seated in the car, in the adjoining seat. The other passenger will ordinarily know that the driver is a learner driver; the road user outside the car can see the L‑plates. Yet it is not disputed that the learner driver owes each of those persons a standard of care determined by reference to the reasonable driver.
To reject knowledge of inexperience as a sufficient basis upon which to found a different standard of care is to reject the only basis, other than proximity, for the decision in Cook v Cook. Yet rejection of knowledge as a basis for applying a different standard of care is required not only by the observation that knowledge of inexperience is held not to affect the standard of care owed to other passengers or other road users who observe a display of L‑plates, but also by the essential requirement that the standard of care be objective and impersonal.
No matter whether the content of the standard of care is described as that of the "inexperienced driver of ordinary prudence"[80] or the "unqualified and inexperienced driver (but with some knowledge of the controls of a motor vehicle) in the situation in which the [driver] was placed"[81] there are evident practical difficulties in applying such a standard. The division in opinion in the Court of Appeal in this case illustrates the difficulties that arise[82].
[80](1986) 162 CLR 376 at 394 per Brennan J.
[81](1986) 162 CLR 376 at 388 per Mason, Wilson, Deane and Dawson JJ.
[82]cf Nettleship v Weston [1971] 2 QB 691.
Both statements of the standard would require the drawing of difficult distinctions between "inexperience" on the one hand and "prudence" on the other, or between a want of application of (as yet unlearned) skills and a want of reasonable care. And both forms of the statement of applicable standard leave unanswered the question whether the distinctions that are drawn are to be applied regardless of how long the person has been learning to drive and regardless of whether the driver has attained a standard (but not the age) at which a licence could be issued. That is, describing the relevant comparator as the reasonable "inexperienced" driver does not sufficiently identify the content of the standard that is intended to be conveyed by use of the word "inexperienced". In particular it leaves undefined what level of competence is to be assumed in such a driver.
Further, to describe the relevant comparator as "unqualified" points only to the absence of approved demonstration of adequate driving competence. Demonstration of relevant ability is beside the point. What is at issue is the definition of a standard of reasonable care, not any external recognition of attaining an ability to drive in accordance with that standard. And for like reasons, to describe the relevant comparator as a "licensed driver" diverts attention from the central inquiry: what would a reasonable driver do? Being authorised by the applicable law to drive unsupervised on a public road is neither a necessary nor a sufficient characteristic of the reasonable driver. Holding or not holding the relevant licence is irrelevant to the description or application of the relevant standard of care. The reasonable driver is to be identified by what such a driver would do or not do when driving, not by what authority a driver would need to have in order to drive lawfully.
Instructor or supervisor?
One other possible footing for a conclusion that different standards of care are to be applied to a learner driver according to whether the person who suffered damage was the supervising driver, or was another passenger or other road user, should be examined. Both in Cook v Cook, and in the present case, the relationship between the parties was described by identifying the plaintiff as the "instructor" or "supervisor" of the defendant as a learner driver. What is meant in this context by "instructor" or "supervisor"?
Words like "instructor" or "supervisor" carry overtones of command or control. Those overtones may jar if they are heard in the context of a parent who has allowed a 16 year old child who holds a learner's permit to drive the family car. But whatever dissonance may stem from an unwillingness of the learner to respond to command or control, the parent, though licensed to drive the vehicle, may have no experience as a teacher, let alone experience in teaching another to drive a motor vehicle. This would suggest that the term "instructor" may not be apt. The expression "supervisor", however, is not wholly inapt, even in the case of the parent and a child who is not receptive to advice, let alone instruction. Use of the term "supervisor" reflects some important features of the legislative regulation of learning to drive a motor vehicle on public roads.
It is convenient to identify those legislative features by particular reference to provisions of the Traffic Act (NT), the Motor Vehicles Act (NT) and the Traffic Regulations (NT) as they were in force at the time of the accident that gives rise to the present litigation. First, driving on a public street in the Territory without a current licence to drive was prohibited[83]. Provision was made[84] for the issue of learner's permits (called a "permit licence") but such a permit would be issued only if the applicant was aged more than 16 years and had passed a test of knowledge of road rules[85]. (If the applicant had attained the age of 16 years but not the age of 16 years and 6 months, the applicant had also to have passed an approved training course[86].)
[83]Traffic Act (NT), s 32(1).
[84]Motor Vehicles Act (NT), s 9.
[85]Motor Vehicles Act, s 10(1).
[86]Motor Vehicles Act, s 10(1).
The holder of a learner's permit was required[87] to display L‑plates on the vehicle and to be accompanied[88] by the holder of a full (as distinct from provisional) licence to drive. The licensed driver had to sit in the front passenger seat[89] and that licensed driver was liable[90] for an offence committed by the learner driver "as if the licence holder was the driver of the vehicle".
[87]Traffic Regulations (NT), reg 12(4).
[88]reg 12(6).
[89]reg 12(2) and (6).
[90]reg 12(10).
It is this last feature of the statutory landscape which suggests that the licensed driver who sits beside a learner driver is in a position to supervise the learner's conduct. But nothing in the applicable Northern Territory legislation and regulations required the licensed driver to offer the learner some instruction about how to drive. That was a matter left to the participants to resolve. Hence the conclusion, stated earlier, that the use of the word "instructor" may not be apposite if it connotes an educative process.
Because the accident happened in the Northern Territory, particular regard must be had to the law of the Territory. That was the law of the place of the wrong[91]. In considering the development of the common law of Australia, however, it is necessary to consider whether there is a "consistent pattern of legislative policy to which the common law in Australia can adapt itself"[92].
[91]John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36.
[92]Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 61-62 [23] per Gleeson CJ, Gaudron and Gummow JJ; [1999] HCA 67.
In that regard, it may be noted that the then applicable regulatory provisions in some Australian jurisdictions other than the Northern Territory placed the licensed driver who must accompany a learner driver in a position of supervision[93]. By contrast, in South Australia, the accompanying driver was required to supervise and instruct the learner driver in the safe and efficient driving of the motor vehicle[94], and in Tasmania, the accompanying driver was to instruct the learner[95]. It may be doubted, therefore, whether a consistent pattern of legislative policy is to be discerned. Nonetheless, it is convenient, for present purposes, to proceed on the basis that the licensed driver who accompanies a learner driver is obliged at least to supervise the learner.
[93]Road Transport (Driver Licensing) Regulation 1999 (NSW), reg 12(5)(a); Road Transport (Driver Licensing) Regulation 2000 (ACT), reg 21(5)(a).
[94]Motor Vehicles Regulations 1996 (SA), reg 27(4).
[95]Vehicle and Traffic (Driver Licensing and Vehicle Registration) Regulations 2000 (Tas), reg 8(7)(a)(i); cf Road Traffic Act 1974 (WA) s 50 and its requirement that a learner driver be accompanied by a "driving instructor".
It is not necessary to decide whether the ambit of the supervision that may be asserted by that licensed driver extends beyond ensuring compliance with the road law to include all aspects of the learner's operation of the vehicle. And of course if the licensed driver was bound to "instruct" the learner, the obligations of the licensed driver would more readily be understood as encompassing all aspects of the learner's operation of the vehicle. Rather, it must be recognised that there are limits to what supervision or instruction can achieve. There are limits because no amount of supervision or instruction can alter two facts. First, unless the vehicle has been specially modified to permit dual control, it is the learner driver, not the supervisor or instructor, who operates the vehicle. Second, the skill that is applied in operating the vehicle depends entirely upon the aptitude and experience of the learner driver.
What is it about the relationship between supervisor and learner that would lead to the conclusion that the reasonable care which the learner must use to avoid damage to the supervisor is less than the reasonable care which the learner must show for the safety of others?
If the conclusion were to be based upon how the supervisor could influence (even direct) the learner driver, it would be based upon considerations that are more appropriately considered in connection with contributory negligence. If the supervisor could have influenced the outcome it may be that the supervisor failed to take reasonable care for his or her own safety. That is a matter which goes directly to questions of contributory negligence; it does not touch the question of the driver's negligence. And if the supervisor could not have influenced the outcome, what is the relevance of the supervisory role to the standard of care the learner should exercise in operating the vehicle?
No different standard of care
The common law recognises many circumstances in which the standard of care expected of a person takes account of some matter that warrants identifying a class of persons or activities as required to exercise a standard of care different from, or more particular than, that of some wholly general and "objective community ideal"[96]. Chief among those circumstances is the profession of particular skill. A higher standard of care is applied in those cases. That standard may be described by reference to those who pursue a certain kind of occupation, like that of medical practitioner, or it may be stated, as a higher level of skill, by reference to a more specific class of occupation such as that of the specialist medical practitioner[97]. At the other end of the spectrum, the standard of care expected of children is attenuated[98].
[96]Fleming, The Law of Torts, 9th ed (1998) at 119.
[97]See, for example, Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58.
[98]McHale v Watson (1966) 115 CLR 199; [1966] HCA 13.
But what distinguishes the principle established in Cook v Cook from cases of the kind just mentioned is that Cook v Cook requires the application of a different standard of care to the one defendant in respect of the one incident yielding the same kind of damage to two different persons, according to whether the plaintiff was supervising the defendant's driving or not. In all other cases in which a different level of care is demanded, the relevant standard of care is applied uniformly. No distinction is drawn according to whether the plaintiff was in a position to supervise, even instruct, the defendant although, of course, if the plaintiff was in that position, a failure to supervise or instruct may be of great importance in deciding whether the plaintiff was contributorily negligent.
There is no warrant for the distinction that was drawn in Cook v Cook. Cook v Cook should no longer be followed in this respect.
The principle adopted in Cook v Cook departed from fundamental principle and achieved no useful result. It is necessary, of course, to recognise that it is a decision that has stood for more than 20 years. Although it seems that there are few if any decided cases in which it has been applied to deny liability, it must be assumed that its application may have affected the terms on which cases have been compromised and the apportionments of responsibility that have been made by courts and parties. Yet despite these considerations, it is better that the departure from principle is now recognised. The plaintiff who was supervising the learner driver, the plaintiff who was another passenger in the vehicle, the plaintiff who was another road user are all entitled to expect that the learner driver will take reasonable care in operating the vehicle. The care that the learner should take is that of the reasonable driver.

Another way in which the existence of compulsory third party motor vehicle insurance operates in this area of tort law concerns the applicability of the second purpose of tort law, namely to encourage care to avoid personal liability and thereby to modify potentially harmful behaviour[229]. Where, as in this context, the payment of a compulsory (but relatively small) premium exempts the driver or owner from personal liability for negligence in all but the most exceptional of cases, it is hard to see how the second objective of the common law is attained. This simply serves to reinforce the conclusion that the common law liability in issue is not "pure". It is a hybrid form of liability in which the common law is inescapably affected by the presence of compulsory statutory insurance.
[229]See eg Neindorf v Junkovic (2005) 80 ALJR 341 at 359-360 [83]-[87]; 222 ALR 631 at 653-654.
Opinions of scholars: Distinguished text writers have accepted this reality. For example, Professor John Fleming explained[230]:
"[W]hile in theory insurance follows liability, in experience insurance often paves the way to liability. In short, it is a 'hidden persuader'."
[230]Fleming, The Law of Torts, 9th ed (1998) at 13; cf Yates v Jones [1990] Aust Torts Reports ¶81-009 at 67,641.
Professor Peter Cane, in his 2006 edition of Atiyah's Accidents, Compensation and the Law[231] accepted that insurance has affected the development of negligence law. Particularly so because "the size of damages awards in personal injury cases is explicable only on the basis that judges are influenced by the widespread presence of insurance"[232].
[231]7th ed (2006) at 250.
[232]7th ed (2006) at 251.
Professor Michael Jones, in his Textbook on Torts recognised that the availability of compulsory insurance is well known to the courts and that "in some instances this knowledge influences the shape of legal rules … The best example is the very high objective standard of care required of motorists"[233]. The author suggested that there are "signs that the courts' attitude to liability insurance is changing" from a total denial of relevance to a more nuanced principle of occasional materiality.
[233]Jones, Textbook on Torts, 8th ed (2002) at 13.
In the latest edition of their text Tort Law, Professors Simon Deakin, Angus Johnston and Sir Basil Markesinis[234] concluded:
"Insurance has … made the imposition of liability more frequent in certain areas of the law – especially traffic accidents and products liability – and has induced some strange twists in traditional concepts as a consequence. … overall, there is no denying the fact that, as a result of modern insurance practices, the notions of 'duty' (and causation) are at times used to conceal insurance dictates and the term 'negligence' is employed in contexts where the defendant could not humanly have avoided the accident in question."
These authors also argue that[235]:
"[D]espite the difficulties inherent in such exercises, our courts would be well advised … to consider these insurance arguments more openly. For not only has this approach gained acceptance in modern life, whether we like it or not, it also provides a useful tool (along with others) in solving the problems posed by modern tort cases."
[234]6th ed (2008) at 14.
[235]6th ed (2008) at 14.
Even writers such as Professor Jane Stapleton, who has been resistant to the consideration of insurance in the exposition of substantive tort liability, acknowledges what she calls "[t]he special case of motor vehicle accidents"[236]. As she observes, in that instance[237]:
"[T]here is … no opportunity for prior bargaining: the parties are strangers. But the case has two unusual features: the desire for self-preservation on both sides means that the 'fault' notion can look particularly artificial in this context; and there is a general belief that an individual's chance of being injured by such 'carelessness' in a road accident is not all that much different from their chance of inadvertently causing such injuries to others. This atypical mutuality of risk means that the pools of potential defendants and potential plaintiffs seem virtually identical. In such a situation, compulsory liability insurance, which technically is about cover for negligently causing injury to others, can appear to be equivalent to a system whereby drivers pay into the same pool for cover for the risk of themselves being injured by negligence."
[236]Stapleton, "Torts, Insurance and Ideology", (1995) 58 Modern Law Review 820 at 841.
[237]Stapleton, "Torts, Insurance and Ideology", (1995) 58 Modern Law Review 820 at 841-842 (footnote omitted).
Professor Stapleton's plea that courts should be "vigilant not to allow assumptions made in the traffic context to be generalised" may be accepted[238]. However, in resolving the present appeal, which arises solely in the motor vehicle context, it is sufficient to add the consideration of compulsory third party motor vehicle insurance to the list of practical considerations collected by Megaw LJ, in favour of acknowledging a single, universal, objective definition of the ambit of the duty of care owed by all drivers to those put at risk by their driving.
[238]Stapleton, "Torts, Insurance and Ideology", (1995) 58 Modern Law Review 820 at 842-843.
That single standard, obliging observance of a common duty of reasonable care, applies whether the driver is skilled or inexperienced. It extends to the drivers and passengers of other vehicles on the road, to pedestrians, and to passengers in the vehicle who have knowledge of the incompetence of the driver, including a learner driver. Only this approach serves to fulfil the basic objectives of the law of negligence in this context as it operates to protect (by compulsory insurance) all those who use the public roads of this country. That is the basic objective of the statutes requiring third party liability insurance for motor vehicles in use on public roads throughout Australia. It is to be reflected in this Court's statement of the duty owed by all drivers under the common law. It is a consideration that this Court should not continue to ignore.
Conclusions and orders
When, therefore, I add to the considerations listed by Megaw LJ in Nettleship, that of compulsory statutory liability insurance, mentioned there by Lord Denning, and when I add that consideration to those recounted by the joint reasons, I come to the same conclusions as are reached in the joint reasons.
The reasoning in Cook is flawed because of its reliance on the now superseded criterion of "proximity". It is therefore proper for this Court to re-examine that reasoning and to place it upon a firmer doctrinal footing. In doing so, the Court should take into account all of the relevant considerations mentioned in past authority, as well as any relevant considerations of legal principle and policy. The latter invite attention to the statutory context in which the common law duty of care owed by a driver on a public road in Australia falls to be defined. That context includes the universal operation of compulsory third party insurance of broad similarity operating throughout the nation. It is well past time, in this special context, that this reality should be acknowledged as affecting the existence and content of the duty of care owed by the driver of a motor vehicle to others reliant on that driver's skill.
On this basis I agree in the conclusions expressed by the joint reasons that the statements in Cook as to the duty of care owed by an unqualified and inexperienced driver should be overruled and replaced with the single standard expressed in terms of the imported skill of the "reasonable driver"[239].
[239]Joint reasons at [27].
I also agree in the other conclusions reached in the joint reasons, and for the reasons there given, in disposing of the respondents' application for special leave to cross-appeal; and in deciding the remaining questions in the proceedings, including the appellant's appeal against the disturbance by the Court of Appeal of the determination reached by the primary judge on the issue of contributory negligence.
It follows that I agree in the orders proposed in the joint reasons[240].
[240]Joint reasons at [97]-[98].
HEYDON J. The proceedings before Studdert J and the Court of Appeal were necessarily conducted on the assumption that Cook v Cook[241] was correct. That assumption was unfavourable to the plaintiff's interests. In this Court the plaintiff advanced many arguments in support of the contention that Cook v Cook should be overruled. But is it necessary to take that step?
[241](1986) 162 CLR 376; [1986] HCA 73.
In the course of argument it became apparent that the conclusion that there had been actionable negligence causing loss to the plaintiff – a conclusion arrived at by the trial judge and upheld by a majority of the Court of Appeal – could be supported without overruling Cook v Cook. Even if the content of the first defendant's duty to the plaintiff was that mandated by Cook v Cook, the conclusion that there should be a verdict for the plaintiff was correct for the reasons given by Studdert J. It is thus not necessary to consider the correctness of Cook v Cook from the point of view of liability.
In relation to contributory negligence, the plaintiff put three submissions in this Court. The first was that there was no causal connection between any contributory negligence and the damage which the plaintiff suffered. The second was that the reasoning which caused the Court of Appeal to increase the percentage by which the plaintiff's damages should be reduced for contributory negligence was erroneous. The third was that if the second submission were accepted, the figure selected by the trial judge should be restored even though, if Cook v Cook were wrong, his approach to contributory negligence had been distorted by that case.
The plaintiff's first submission on contributory negligence should be rejected. For the reasons given in the plurality judgment, the plaintiff failed to undermine the conclusion of the courts below that the contributory negligence of the plaintiff had been a cause of the damage that he suffered[242]. That controversy does not depend on the correctness of Cook v Cook.
[242]At [94]-[96].
The plaintiff's second submission about contributory negligence was that while the Court of Appeal majority did not disagree with the three respects in which Studdert J found the plaintiff to have been guilty of contributory negligence, they weighted the relevant factors differently. It was submitted that this did not sufficiently expose any error justifying alteration of Studdert J's percentage. This submission is correct.
If the plaintiff had contended that Studdert J's necessary acceptance of Cook v Cook had led him to select too high a percentage for contributory negligence, it would have been necessary to examine the question whether Cook v Cook was correct. But the plaintiff's third submission on contributory negligence involved an acceptance of the conclusion reached by Studdert J as to the correct percentage deduction. Like the first two submissions on contributory negligence, it therefore did not involve any reconsideration of Cook v Cook.
It follows that the Court of Appeal's orders, so far as they were controversial, can be reversed, and those of Studdert J restored, by accepting submissions of the plaintiff other than the submission that Cook v Cook should be overruled. The plaintiff's submission that Cook v Cook be overruled is not a necessary step towards the reversal of the Court of Appeal's orders or the upholding of Studdert J's orders. For that reason I would reserve my opinion on the correctness of that case.
The orders proposed in the plurality judgment should be made.
CRENNAN J. I agree that the appeal should be allowed and orders made as proposed by Gummow, Hayne and Kiefel JJ. I agree with the reasons of the Chief Justice and agree also with the reasons of Gummow, Hayne and Kiefel JJ.