Imbree v McNeilly

Case [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".

  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 Cook[1] to be special, and to require a departure from…

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Details
AGLC
Imbree v McNeilly [2008] HCA 40
Case
[2008] HCA 40
Decision Date

CaseChat Overview and Summary

The case of *Imbree v McNeilly* involved an appeal to the High Court of Australia concerning the standard of care owed by an inexperienced driver to a passenger. The appellant, Mr Imbree, was a passenger in a vehicle driven by the respondent, Mr McNeilly, who was a 16-year-old learner driver without a permit. Mr Imbree, aware of Mr McNeilly's inexperience, had permitted him to drive. An accident occurred, resulting in injuries to Mr Imbree. The central dispute revolved around whether Mr McNeilly owed Mr Imbree the standard of care expected of a reasonable driver, or a lesser standard based on his inexperience.

The High Court was required to determine the applicable standard of care owed by an unqualified and inexperienced driver to a passenger who is aware of that inexperience. Specifically, the Court had to consider whether the precedent established in *Cook v Cook* should be followed, which held that in such circumstances, the driver owed only the care reasonably to be expected of an unqualified and inexperienced driver. The Court also considered the relevance of compulsory third-party insurance to the definition of the standard of care in the context of motor vehicle accidents.

The High Court held that the standard of care owed by any driver of a motor vehicle, regardless of skill or experience, is that of a reasonable driver. This single standard applies to all road users, including passengers who are aware of the driver's inexperience. The Court reasoned that the existence of compulsory third-party insurance throughout Australia, designed to protect those injured on public roads, should be reflected in the common law duty of care owed by drivers. Consequently, the Court concluded that the reasoning in *Cook v Cook* was flawed, particularly its reliance on the superseded criterion of "proximity," and that it should no longer be followed.

The appeal was allowed with costs, and the orders of the Court of Appeal of the Supreme Court of New South Wales were set aside. The parties were given a period to file agreed minutes of consequential orders, with a further period for written submissions if agreement could not be reached. An application for special leave to cross-appeal was refused with costs.

Orders

Orders of the court

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.

(Joint judgment of Gummow, Heyne and Kiefel JJ, remainder of the Court agreeing to the orders in separate judgments)

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ GUMMOW, HAYNE AND KIEFEL JJ HEYDON J CRENNAN J
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]. 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.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW, HAYNE AND KIEFEL JJ, HEYDON J, CRENNAN J

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