Imbree v McNeilly & Anor; McNeilly v Qantas Airways Limited

[2008] HCATrans 182

[2008] HCATrans 182

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S43 of 2008

B e t w e e n -

PAUL ANTHONY IMBREE

Appellant

and

JESSIE McNEILLY

First Respondent

QANTAS AIRWAYS LIMITED

Second Respondent

Office of the Registry
  Sydney  No S392 of 2007

B e t w e e n -

JESSIE McNEILLY

First Applicant

QANTAS AIRWAYS LIMITED

Second Applicant

and

PAUL ANTHONY IMBREE

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 MAY 2008, AT 10.02 AM

Copyright in the High Court of Australia

__________________

MR A.S. MORRISON, SC:   May it please the Court, I appear with my learned friends, MR M.R. HALL and MR A.J. STONE, for the appellant.  (instructed by Turner Whelan)

MR K.P. REWELL, SC:   If the Court pleases, I appear with my learned friend, MR M.A. CLEARY, for the respondents to the appeal and the applicants on a special leave application. (instructed by TL Lawyers)

GLEESON CJ:   Yes, Dr Morrison.

MR MORRISON:   May it please the Court.  Your Honours, this appeal raises the issue of principle as to whether the objective common law standard of care is truly objective or is varied by knowledge.  It also asks whether parents are insured against the ordinary risks of teaching their children to drive.  Beyond these questions of general principle this appeal has a practical purpose.  The trial judge assessed Mr Imbree’s contributory negligence at 30 per cent.  We argue that applying proper principles as to causation this should have been zero.  The Court of Appeal reassessed contributory negligence and increased it to two‑thirds.  The effect for Mr Imbree was to further reduce his damages by some $4 million.

GLEESON CJ:   Dr Morrison, your complaint, if I can use that expression, about Cook v Cook is not that it operated to defeat your client’s cause of action, because it did not in the present case.

MR MORRISON:   Yes.

GLEESON CJ:   Is your complaint that it operated to distort the consideration of the question of contributory negligence?

MR MORRISON:   Yes, your Honour.  That puts it very simply, but yes.  Your Honours, apart from that issue, which is the issue which takes us into Cook v Cook, we would also argue if necessary that the appellate interference with the trial judge’s findings, findings of fact and in respect of contributory negligence, were unwarranted and in breach of well‑settled authority regarding appellate interference.

KIRBY J:   As you are asking us to revisit Cook v Cook, I was a little surprised that you were not bolder.  Why did you not embrace Lord Denning’s theory and simply say the time has come for us to drop this pretence that there is not insurance, and indeed compulsory insurance, that in this country this Court has said on various occasions you find the common law, if there are general principles of statute law in the context of the constitution of statute law, and this is just another instance, and if they did not do that in the past, well, that was just their mistake, and if we are going to have another look at this thing we should do it root and branch?  It is a very timid submission you put before the Court, Dr Morrison, not like you.

MR MORRISON:   Your Honour, Lord Justice Megaw embodies the approach that we advocate.

KIRBY J:   I know, but as Mr Rewell points out, Lord Denning with his usual perception and looking forward said he would look realistically at the fact that in England they had compulsory third party insurance, that that is the milieu in which you therefore develop the common law, and he is complaining that that is what, in effect, judges have been doing, and he says that should not be done, whereas one theory, at least arguably, is that is exactly what they should do, develop the common law in the context of the fact that from coast to coast in this country we have compulsory third party motor vehicle insurance.

MR MORRISON:   Your Honours, we do not need to go that far, and whilst I appreciate ‑ ‑ ‑

KIRBY J:   But if we are going to look at the principles ‑ ‑ ‑

MR MORRISON:   ‑ ‑ ‑the force of what your Honour says, nonetheless for the appellant to succeed he does not have to have the Master of the Rolls approach adopted in this case.  If the Court chooses to embrace that, well and good, but we do not have to pursue that course.

KIRBY J:   You do not have to, but once you come to this Court and ask us to reconsider matters of basic legal principle, you have to be ready to deal with the matter conceptually and not just another little bandaid, as far as I am concerned anyway.

MR MORRISON:   I hope, your Honour, that we will be able to do that, but we will do that in the context of the way in which Lord Justice Megaw analyses it and we will suggest that his analysis is conceptually correct and in accordance with common law principle.

KIRBY J:   So it will be an Elastoplast, not a bandaid.

MR MORRISON:   Rather more than that because, if we are correct, then a single objective standard, instead of a variable standard based on knowledge, will have broad application, and it ultimately does not matter whether you reach that same result through looking at public policy issues, such as third party insurance, or by looking at the basic common law principles, the traditional principles of tort.  The same result is achieved.  We say that, without a need to enter into public policy issues, we can obtain the same result.

KIRBY J:   Do not assume that I will not want myself, for my own reasoning, if we do, as it were, jump the hurdle of Cook v Cook, to look more deeply at what the principle should be.  I do recognise that the issue of insurance would transcend this case and would transcend cases of motor vehicle insurance and, therefore, it is rather a large question and it may not be appropriate in light of the way the matter is argued to embrace it in this case, but it at least is a view that you develop the common law in the light of universal principles of statutory law that apply, and that is certainly one – third party compulsory insurance everywhere in Australia.

MR MORRISON:   We will not seek to ignore the issue which your Honour has drawn attention to.

KIRBY J:   Mr Rewell will not let you.

MR MORRISON:   But it is not our primary submission.  Your Honours, just to come back to what I was saying, the issues of broad principle become relevant in this case because, in assessing contributory negligence, both the trial judge and the Court of Appeal must have measured the extent of the respondents’ departure from the duty owed by applying the lowered standard of care for a novice driver from Cook v Cook rather than the objective standard owed by all other drivers.  An assessment of relative culpability must miscarry if one party’s departure from duty is measured against the wrong standard.

Your Honours, we would propose in oral submissions to follow the same sequence as the written submissions which have been prepared and that your Honours have:  first, why Cook v Cook should be overturned; second, why Cook v Cook caused the assessment of contributory negligence to miscarry; thirdly, why there should be no contributory negligence in any event and that is the causation argument; and fourth, a submission which we only put if Cook v Cook is left undisturbed and if we are unsuccessful on the causation argument, why the Court of Appeal should not have interfered with the decision at first instance in any event.

GUMMOW J:   What is the position of Qantas on this record?  I do not quite understand at the moment.

MR MORRISON:   Qantas were the owners of the vehicle.  Mr Imbree was an employee of Qantas and was provided with a vehicle as part of the terms of his ‑ ‑ ‑

GUMMOW J:   Why are they joined in this appeal?

MR MORRISON:   They were sued because they were the owner of the vehicle, and it is one of the options available under the motor accident legislation in New South Wales and has been for a very long time, your Honour.  It has no particular significance.  If sometimes a defendant is unable to be served it is more convenient to have had the owner joined as well, in which case service ceases to be a problem.

KIRBY J:   So they are a respondent to the appeal?

MR MORRISON:   Yes.

KIRBY J:   Well, I think I should declare that I have many frequent flyer points with Qantas Airways, simply to highlight the absurdity of pretending that Qantas are directly and angrily involved in this appeal.  They are not.  Their third party insurer stands behind Mr Rewell.

MR MORRISON:   The third party insurer stands behind both respondents and is, for practical purposes, the interested party that opposes Mr Imbree.  Your Honours, if I can just turn to the analysis of Cook v Cook.  The majority judgment in Cook v Cook was heavily dependent upon notions of proximity now rejected in this Court, and I simply give your Honours some references in the judgment.  Page 381 at point 9, page 382, page 383 and page 387 at point 3.  All of the judges in Cook v Cook supported the existence of an objective standard of care for drivers.  However, in the majority judgment, notions of proximity were used to create an exception to this general principle.  Where there was knowledge of a lesser capacity, due to approximate relationship, then the standard of care was lowered.

KIRBY J:   Mr Rewell, in his submissions, says that that is not what the majority did, that they applied a test of knowledge.  Could you just explain how, in your submission, the majority were influenced by the principle of proximity in the way they reasoned.

MR MORRISON:   The shortest answer to your Honour’s question is to be found in Cook v Cook at page 382.  If we look at the passage at about point 5 on that page, we see these words in the majority judgment:

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.

Your Honours, proximity for practical purposes was made the touchstone and control for the standard of care in respect of learner drivers.

KIRBY J:   I am sorry to ask this, but could you just explain how proximity worked under the old theory?

MR MORRISON:   As we understand it, the court was looking ‑ ‑ ‑

KIRBY J:   It was not purely geographical proximity, it was in a metaphorical sense?

MR MORRISON:   It was looking for notions of relationship and arising from that relationship was derived the existence of a duty of care and a standard of care was said also to derive from it as well.  So that because the standard of care was varied by knowledge within that relationship, an exception was then created to the general principle at common law of an objective standard owed.  So it was once one went into the question of relationship, knowledge became part of that.  Knowledge then affected the standard of care which flowed from the duty of care said to have arisen.  That is as we apprehend the way in which the court saw ‑ ‑ ‑

KIRBY J:   I am sorry to ask this and I should know it, but was not the notion that when Lord Atkin talked of our duty to our neighbour, the biblical expression, that who then is my neighbour, you had to find what was he talking about in that metaphor and that to answer that question you had to be somebody in a proximate relationship, either geographical or familial or some other.  That is what it was trying to get at, was it not?

MR MORRISON:   Yes, your Honour.  But, given that in the particular case we were talking about a relationship which was of a particular kind where knowledge was a relevant part, the court used that relationship as part of proximity not just to create a duty of care, but also to measure the standard of care in this particular circumstance.  Your Honours, Justice Brennan reached the same result but by a different route.  He distanced himself from the majority’s use of proximity in creating exceptions to the objective standard.

GUMMOW J:   That is the problem you have to face, I suppose.

MR MORRISON:   Indeed, and hopefully – I will take that on right now.  Your Honours, without reliance on proximity Justice Brennan nonetheless held that knowledge served to vary the standard of care.  That is to be found at page 393 at point 2.  Justice Brennan said that the standard of care was fixed by reference to the caution which a person of ordinary prudence would observe in the particular circumstances.  Consequently, a defendant would not escape liability by proving that he was abnormal in some respect which reduced his capacity for foresight or prudence.

That is a reasonable statement of the traditional common law approach of a single objective standard.  But he then went on to refer to the dissenting judgment of Sir Owen Dixon in Insurance Commissioner v Joyce and he did so with general approval.  He did, however, disagree with one specific assertion of Justice Dixon – namely Justice Dixon’s proposition that if a man accepts a lift from a car driver whom he knows to have lost a limb or an eye or to be deaf, he cannot complain if he does not exhibit the same skill and competence as a driver who suffers from no defect.

GLEESON CJ:   Pausing there, when you are dealing with somebody who is learning to do something, is there a material difference between care on the one hand and skill on the other?

MR MORRISON:   There may always be a difference between care and skill whether we are talking about a learner or not, your Honour.  This learner had driven for some two‑and‑a‑half hours on unsealed roads, some of which were a good deal worse than Larapinta Drive.  There would be many licensed drivers who have never driven off a sealed road in their lives.  For our part, we suggest that there will always be some relationship between care and skill which will vary according to the experience and background of the particular driver.

GLEESON CJ:   Get away from motor vehicles for a moment and into an area where there is certainly no third party insurance.  If a gardener is teaching his son to use a chainsaw and the son is using it under instruction for the first time, is the care expected of the user different from the skill expected of the user?

MR MORRISON:   Is your Honour talking about an adult ‑ ‑ ‑

GLEESON CJ:   An adult teaching a child to use a chainsaw.

MR MORRISON:   Your Honour, children are in a different category, for reasons which we will come back to in a moment.

GLEESON CJ:   All right, an adult teaching an adult to use a chainsaw.

MR MORRISON:   Then in that situation we would say that there is a single objective standard created by the nature of the activity engaged in.  The person who uses a chainsaw owes the same duty of care regardless of his level of experience, otherwise it would be an ‑ ‑ ‑

GLEESON CJ:   In that context the care and skill mean the same thing.

MR MORRISON:   They may not, but otherwise what one is engaged in is an inquiry in every case as to the extent of an experience of a particular person to determine what the standard of care is.  It ceases to be an objective standard and becomes an infinitely variable standard, with that inquiry to be made in every case.

GLEESON CJ:   I was prompted to ask the question because in the passage that you were quoting Sir Own Dixon moved from a reference to a “standard of care” in one sentence to a reference to “skill and competence” in the next sentence, and I was just wondering whether they are the same thing.

MR MORRISON:   I will take that on board, your Honour.  I am not sure what the answer to that is, and I am not quite sure what his Honour had in mind in making that particular statement.  Your Honours, if I can return to Justice Brennan’s analysis, Justice Brennan ultimately agreed with Sir Owen Dixon that:

It would be artificial to exclude those circumstances –

in which a person accepts travel as a passenger –

from consideration in determining what is reasonable care.

That is page 392 at about point 9.  It followed for Justice Brennan that:

Knowledge of the disabling condition of the driver or the defect in the vehicle . . . may affect the application of the standard of care that would otherwise be expected.

He thus agreed with Justice Dixon that a person who accepted:

the voluntary services of a driver affected by drink, he cannot complain of improper driving caused by his condition, because it involves no breach of duty.

That is at 393 at point 5.  That is the knowledge base variation to the objective standard for which the respondents in this case contend.  We say that is a position inconsistent with the outcome in this Court in Joslyn v Berryman because there an objective standard was applied to the drunk driver and the adjustment for the passenger’s knowledge of the intoxication was made through the mechanism of contributory negligence.

Consistent application of the respondents’ position in this case, that is, consistent with Justice Brennan’s reasoning, must lead to the finding that a drunk driver owes only the standard of care to be owed of a drunk person of ordinary prudence, a contradiction in terms.  Of course, when Justice Dixon referred to a plaintiff’s want of common caution by which he could have avoided the injury in Joyce, he did so in a context where contributory negligence was an absolute defence.

Similarly, the analysis of volens by the court in Joyce harks back to a period when the requirement for consent to the risk was far less stringent than that now accepted by this Court, and for that matter courts in other common law countries.  The court in Cook v Cook left open other categories in which a variable standard of care might be applied based upon knowledge of risk.  That was the approach rejected by the majority in Nettleship v Weston, and we embrace, as I said earlier, the views of Lord Justice Megaw as to why.

Can I turn now to Nettleship v Weston.  Lord Denning in his analysis reaffirmed that a learner driver under instruction owes the same standard of care as any other driver.  If I take your Honours to 699F, the Master of the Rolls echoed Lord Macmillan in Glasgow Corporation v Muir:

“It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question” . . . The learner driver may be doing his best, but his incompetent best is not good enough.  He must drive in as good a manner as a driver of skill, experience and care, who is sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity.

His Lordship went on to acknowledge the significance of compulsory third party insurance and said we were moving away from:

“No liability without fault.”  We are beginning to apply the test:  “On whom should the risk fall?”

However, we would submit that his true ratio is to be found in the passage commencing at 700H and going on to 701B where he disagrees with the views of Sir Owen Dixon in Joyce and says that an infinitely variable standard of care must flow from Sir Owen’s dicta.

GLEESON CJ:   Lord Denning – would a different principle have applied in the case of a father teaching his son to drive a motor car and a farmer teaching his son to drive a tractor?

MR MORRISON:   That is not apparent from the judgment in Nettleship and it is not apparent when we come to examine cases outside the motor vehicle area.  I will do that, if I may, in due course, your Honour, but we accept – and we indeed embrace the view – that the principle to be adopted should be a principle of general application for tort law, not just for motor vehicle cases.

KIRBY J:   But Lord Denning, on page 701, seems to be confining himself to motor vehicle cases.  He says we should not allow it to be introduced today in motor car cases, though it is backed by Sir Owen Dixon.

MR MORRISON:   Yes, he says that, your Honour.

KIRBY J:   So he seems to be fashioning a rule special to motor car negligence.

MR MORRISON:   And, indeed, that is one of the reasons we would say that the views of Lord Justice Megaw are to be preferred as an analysis of the trend of the common law.  It is interesting that the Master of the Rolls also said at 701A that:

If the knowledge of the passenger were held to take away the duty of care -

it would be a reversion to the long-rejected maxim “Scienti non fit injuria”.  That is a doctrine which was indeed, particularly in employment cases, taken away in the 19th century.  In the context in which his Lordship spoke, it is clear that by “take away the duty of care” he meant reduce the standard of care to a point where a finding of no breach must follow.

Lord Justice Salmon, in dissent, generally adopted the views of Sir Owen Dixon but expressly disagreed with his assumption that because a driver has, to the knowledge of the passenger, lost a limb or an eye or is deaf he owes any reduced standard.  He disagrees with that proposition because many such drivers are no less skilful and competent than the ordinary man.

HEYDON J:   I do not see how a deaf driver can attain the same level of skill and competence.

MR MORRISON:   That may well be so, your Honour, but nonetheless, there are many persons upon our roads who, for example, only have one eye or are missing a limb who have modified controls on the vehicle.  Do they owe a lower standard of care?  And we then have to ask the question, what about the pedestrian that they hit, the pedestrian who has no knowledge?  Is there a lower standard of care owed to them than to occupants in that person’s car who may have had knowledge of the disability, or may not, or may have had varying knowledge of the degree of disability?

HAYNE J:   The reference to lower standard of care invites attention to its definition and ultimately, short of defining it in entirely self‑referential terms, what is its content?

MR MORRISON:   Yes, your Honour.

HAYNE J:   Unless you say you owe the standard of care that this driver having this level of experience might be – what?  Expected to show?  What does that mean?  You are turning in a circle.

MR MORRISON:   Yes, that indeed is one of the difficulties of an infinitely variable standard of care, we would say.

KIRBY J:   But you say why would it not be different then if the person is disabled, but this is the basic problem of trying to graft the common law onto a system of compulsory insurance because the answer that may come back, and maybe Sir Owen Dixon would give the answer, if the person is disabled and if the test is were they negligent and if they were doing their best, so be it.  That is the ultimate paradox of trying to import into a system of compulsory third party insurance notions of unalloyed negligence.

MR MORRISON:   It does not just create difficulties in respect of motor vehicle cases; it creates difficulties in other areas.

KIRBY J:   I realise that, but what I am trying to suggest to you is that your proposition to this Court wants to take advantage of the realism of the unfairness and unwisdom of making a person who is blind in one eye – exempting them from liability to an innocent pedestrian who is crossing the road.  You want to accept that, but in a paradigm of dealing with matters within the rubric of negligence, appealing to our sense of realism that ultimately stems from the fact that we all know that there is a system of compulsory third party insurance.  It is just that Lord Denning is the only one who has been completely upfront about it.

HAYNE J:   Well, is there a system of compulsory third party insurance, Dr Morrison, or more accurately, are there eight radically different systems for dealing with the consequences of road trauma in this country?  Some of them fault, some of them no fault, some of them founded on insurance contracts which are founded in notions of liability, some of them not.

MR MORRISON:   There are, and there has been since at least the early 1940s, compulsory third party insurance throughout the whole of Australia.

HAYNE J:   Of one form or another.

MR MORRISON:   Indeed, although initially all of one form in substance.  There are now, for example, in the Northern Territory, at least in respect of Northern Territory residents, no common law rights, but there is still a scheme of no fault cover available and there are variations on that in some other jurisdictions in Australia.  But nonetheless, the principle remains that there is a form of insurance cover throughout Australia, mostly dependent upon fault, but not entirely, in the varying jurisdictions.

Your Honours, Lord Salmon goes on to say that the person who accepts a lift with a drunk driver - this is at 704A, cannot expect the driver to drive other than dangerously and accordingly Lord Salmon concluded that a learner driver is only liable to his instructor for a mistake greater than that to be expected of a prudent beginner, that is, the same test as Justice Brennan in Cook v Cook.

But if we turn to Lord Justice Megaw commencing at 707G, we see there that he says that if the views of Justice Dixon in Joyce were adopted as they were in Cook v Cook, the doctrine of varying standards could not logically be confined to the duty of care owed by learner drivers.  There was no reason in logic why it should not operate in a much wider sphere and we pointed out in our written submissions, for example, in this case, this was a major tourist road leading from Alice Springs to Kings Canyon and Uluru.  Someone who had just arrived in Alice Springs and hired a land cruiser might well be a person who had never driven off the bitumen in their lives before, who had never driven on the left of the road before.

Would the passenger in that vehicle be owed a lower standard of care?  If Cook v Cook is correct, the answer is no and yet the learner in this case, who was significantly more experienced in driving off road and who had driven on worse roads in worse conditions than in Larapinta Drive where the accident occurred is said to owe a variable standard.  It does not, as an exercise in logic, stand up.

KIRBY J:   That is the problem.  As an exercise in logic, if you accept the principle no liability without fault, it may well stand up.  It is just that as an exercise of practicality it does not seem to stand up.  I mean, this is the basic problem.  If the principle is no liability without fault and if a person is a learner driver, at least one view of the logic is you can only expect from a learner driver the skill of a learner driver and especially if you know it is a learner driver, then you should not be complaining if you do not get the skill of a Jack Brabham.

MR MORRISON:   But the same comment must in logic apply to an inexperienced but licensed driver.  There must be many learners, particularly now that a learner has to drive 120 hours under supervision in New South Wales, many learners who have a great deal more experience on dirt roads than many licensed drivers driving in Sydney or in Canberra.  It does not make any logical sense to have a variable duty of care for learners but a single objective standard for licensed drivers and, indeed, the respondent appears to embrace that proposition and say there should be an infinitely variable standard for everyone.  We say that is the ultimate consequence of the Cook v Cook approach and it is a fallacy.

KIRBY J:   Is this 120 hours the product of statute?

MR MORRISON:   Yes.

KIRBY J: You are therefore using statute to give us some idea of what the content of the common law should be. Why do you not embrace the idea of using the Motor Vehicles Act to give us the same assistance?

MR MORRISON:   It is not a question of not embracing it, your Honour.

KIRBY J:   Just a bridge too far.

MR MORRISON:   We just do not need to go that far.  Appreciating the force in what your Honour puts, if policy ultimately is to determine the matter, then there is great force in your Honour’s proposition.  But we say that even before you get to that point, the common law itself looked at correctly and in point of legal principle, already mandates the same outcome.  What Lord Justice Megaw goes on to say is that there is great difficulty with a fluctuating standard.  For example, he gives the example that if you have a reduced standard for the learner driver, then why should not the inexperienced instructor, the person who has never taught their child or a child before, also a reduced standard of care to the learner? 

He also points out that knowledge by the learner of the instructor or of the instructor by the learner will be variable not just as between each occasion when they drive, but even during the course of a particular drive and that the assessment of the standard then to be derived in every case becomes neither desirable nor practicable.  We would say that the four different assessments which have been made by the judges below illustrate the very difficulty which his Lordship was pointing to.  At 709A his Lordship said that “if the principle of varying standards is to be accepted” it cannot be confined to learners, it must include inexperienced licensed drivers.  Nor could it be confined to inexperience.  If the plaintiff knows the driver has a physical or temperamental defect, why should not the same doctrine apply?

KIRBY J:   Well, there is the point that was raised by the Chief Justice on the special leave.  What if you get in the car with somebody who you know to have dementia or Alzheimer’s disease, what can you expect?

MR MORRISON:   Indeed.

KIRBY J:   The answer may be you can only expect the care of a person with that degree of known dementia.

MR MORRISON:   What if you get in the car with someone who you know has on occasions exceeded the speed limit but does not invariably do so?  What is the standard that you are entitled to?  That is the difficulty about a variable standard.  Why are you not entitled to expect that that person will exercise ordinary prudence on this particular occasion, as he may well have done on other occasions, rather than the lack of prudence which he has on some occasions demonstrated?

KIRBY J:   But that is a little different to knowing Alzheimer’s disease.

MR MORRISON:   Indeed.  The Alzheimer’s disease example really goes back to the same sort of problems that Sir Owen Dixon would have regarded as reducing the standard of care.  Finally, your Honours, we would say in this regard that this doctrine cannot be confined to driving.  The known inexperienced surgeon or known newly‑qualified solicitor would also owe a lower standard of care, contrary to well‑settled law.  We refer in that regard to what is said in Nettleship at page 709D.  Lord Justice Megaw prefers a reasonably certain and ascertainable standard even if on occasion it attributes tortious liability to someone who is not morally blameworthy. 

An example might be the one‑eyed person who has a licence to drive and who obviously has a degree of blind spot and fails to see a pedestrian and strikes them.  They may not be morally blameworthy, but why was not that pedestrian entitled to the ordinary standard of care owed by all motorists and not by a standard which varies according to something which is wholly outside the control of the pedestrian?

KIRBY J:   What is wrong with the law saying in those circumstances, because we have a system of recovering damages only for fault, but that that does inevitably introduce elements of moral responsibility and culpability and therefore if the person is blind or has Alzheimer’s, then they are not legally at fault?  The only thing that makes you pull back in horror at that is, as a matter of policy, that you are then going to have a whole series of variable responsibilities and then you ask yourself why do you pull back in horror?  Answer, because there is a system of compulsory insurance.

MR MORRISON:   We would pull back in horror for more than just that reason, but can I come back to that in a moment, your Honour.  Just to complete what I was putting in respect of Lord Justice Megaw, he pointed out that Mrs Weston, if she had knocked down a pedestrian, might not have been morally blameworthy but she would still have been liable in tort law.  We would have said the same in respect of Mrs Cook if she had struck a pedestrian.

The respondents in their written submissions concede that a reduced standard of care based on knowledge cannot rationally be confined to learner drivers.  For the exception to the general standard to be principled, it must be universally applied to all others who have actual or constructive knowledge of a tort feasor’s inability or incapacity to meet the objective standard.  The respondents then say in defence of the consequences of that exercise in logic that cases where knowledge will reduce the standard will be, in their words, rare and uncommon.  However, there is nothing rare or uncommon about knowledge by a passenger of a driver’s defects or propensities, especially amongst those who travel regularly together.  There is nothing rare or uncommon about observing the L‑plates on another vehicle.  There is nothing rare or uncommon about knowing the particular strengths or weaknesses of your solicitor, your doctor or your accountant.

The parties in this case appear to agree that Cook v Cook should not be preserved solely as a limited exception to the general objective standard of care.  The appellant contends that the objective standard should be universal and contributory negligence should be the adjustment mechanism.  The respondents contend that the exception should be broader and that knowledge should reduce and, in some cases, eliminate the duty.  Indeed, to take the respondents’ position to its logical conclusion, knowledge is the starting point in defining the duty with the objective standard becoming the de facto default position.

On the basis of the positions put by the parties in this case, the Court is presented with a clear division, an objective standard versus a knowledge based standard.  We submit there are sound reasons to prefer the objective stand and there are four principal ones which we will outline.

KIRBY J:   Just before you come to those, may I ask is there clear authority that if you go to a first‑year‑out solicitor and you know that the person is a first‑year‑out solicitor you cannot expect them to – you can expect of them the same skill, care, attention as you would of the senior partner of one of the biggest firms in the country.  Is that clear law?

MR MORRISON:   It is, but not in respect of a solicitor, that is, there is no case directly on that.  There is a case called Wilsher v Essex Area Health Authority which says in respect of an inexperienced houseman, that he owed the same objective duty of care as an experienced surgeon undertaking the work which he undertook and which went awry.

KIRBY J:   What is the name of that case?

MR MORRISON:   Wilsher v Essex Area Health Authority.  Can I come back to that, your Honour, because I want to refer to it in slightly more detail.  The English textbook writers, and we have gone through them, give the solicitor example but without reference to authority.  Almost without exception, the torts texts support the Nettleship v Weston approach and are strongly opposed to the Cook v Cook approach for the reasons which we are about to enunciate.

I might say that we have also had a look at the other common law jurisdictions.  We do not get a great deal of assistance from them, in part because New Zealand got rid of its common law system so long ago and in part because in the United States, most states still have contributory negligence as a total defence.  So we do not get a lot of assistance, but certainly in England and in Scotland and in Ireland, Nettleship v Weston is clearly the law and remains the law.

GUMMOW J:   What about Canada?

MR MORRISON:   In Canada, there is little authority, but there is one ‑ ‑ ‑

KIRBY J:   Justice Megaw referred to a decision of Justice Rand in the Supreme Court, I saw.

MR MORRISON:   Yes.  There is one case in Canada which tended to go down the line of the Cook v Cook approach.  That was a case called Lovelace v Fossum (1971) 24 DLR (3d) 561, but again and unsurprisingly, even though the trial judge preferred the approach – the dissenting opinion of Lord Justice Salmon in Nettleship v Weston, nonetheless he, as has been the case in every decision in Australia, found some additional measure of negligence over and above that to be expected of the inexperience learner and therefore the plaintiff succeeded.  We just say that that illustrates the very point that we make in this case that – and indeed the respondents make the same point that Cook v Cook produces such an absurd outcome that the courts have gone to great lengths to try and avoid that result.  What we say about ‑ ‑ ‑

KIRBY J:   I will not say it again, but it does not produce a logically absurd outcome.  It produces an absurd outcome in terms of looking after people who are seriously injured in car accidents.

MR MORRISON:   We would say it goes beyond the car accident situation and may I come to that now, your Honour.  We say that there are sound reasons generally, not just in respect of motor vehicle cases, to prefer the objective standard.  They are:  first, an objective standard is sound in principle; second, a knowledge‑based standard will restore contributory negligence to a complete defence in some cases; third, a knowledge‑based standard will be variable and capricious in its application; and, fourth, a knowledge‑based standard will increase the duration and complexity of trials.

Dealing with the first of those, we say it is wrong in principle.  A standard which varies with knowledge would run counter to the principle of personal autonomy.  In judging the defendant’s conduct to determine what duty he or she owed and whether that duty was met, the law looks at the defendant.  The defendant’s decisions and actions, skills and capacities can all be relevant.  The plaintiff’s knowledge is not relevant to that inquiry.  We reserve consideration of the plaintiff for that phase of the analysis in which the plaintiff’s conduct is to be judged, contributory negligence or, much more rarely, volenti or ex turpi causa.  The plaintiff’s knowledge is relevant then to those inquiries. 

Secondly, reinstituting contributory negligence as a complete defence.  As I mentioned a little earlier, progressively since the 1940s the legislatures have eliminated the concept of contributory negligence as a complete defence and a knowledge‑based exception to the objective standard potentially reverses those reforms.  If the passenger knows the driver is intoxicated, then there is knowledge that the driver is incapable of meeting the objective standard.  With a heavily intoxicated driver the standard of care that may be expected may well be negligible.  The knowledge effectively becomes a complete defence rather than the basis for a finding of significant contributory negligence.  It is difficult to see how the consistent application of this approach could do other than reverse the outcome in Joslyn v Berryman.

Your Honours, we provided yesterday to the Court an extract from the late Professor Fleming’s Law of Torts, 9th edition at 341, and his words, perhaps a little more strongly stated than some, but they reflect the thrust of the views of the academic writers in tort law both in Australia and in England.  Professor Fleming said this:

The insidious thrust of this argument lies in its potential for resuscitating ideas painfully excoriated from the defence of volenti.  Most important, it tends to equate knowledge with acceptance of the risk, as in the contention that knowingly to get into a car with an incompetent driver establishes without more a relation with a proportionately reduced expectation (and duty) of care.  Judicial endorsements of this approach in the past lose at least some of their force in the light of the fact that they preceded apportionment for contributory negligence.  Now however it matters a great deal whether apportionment is to be circumvented, and plaintiffs defeated entirely, by diluting “acceptance of the risk” under a new label.

HAYNE J:   The premise for what Sir Owen Dixon said in Joyce is articulated at pages 59 and 60 of Joyce 77 CLR.  Relevantly, at the very bottom of 59, over to 60, the premise is that there is little difference in the forensic application of the solutions that he was then considering.  They were divided in two, though in fact there were three possible solutions identified at the foot of 59, and his Honour chose between them on the explicit presupposition that there was little difference to be seen in the forensic application of them.  Now, once you permit contributory negligence to apportion responsibility, that premise departs.

MR MORRISON:   What has to be taken into account is that Sir Owen Dixon was speaking at a time when contributory negligence was a complete defence and, as he points out as well, courts went to great lengths to avoid findings of contributory negligence in circumstances which we would have found quite extraordinary, or we would find extraordinary today.

HAYNE J:   Ultimately, searching for the proximate cause.

MR MORRISON:   Yes.

HAYNE J:   Rather than whether negligence was a cause.

MR MORRIS:   Yes, so that the courts, having recognised the absurdity of outcome, went to significant lengths to avoid that result.  He also points to the other two issues, one of which was volens, and volens at that time had much wider application than it has now.  For example, a person who gets into a vehicle with a drunk driver would not now be said to accept that there is no standard of care owed, not without further inquiry and not without a good deal more evidence than that.  When Sir Owen Dixon was writing, the position was otherwise.

So we need to treat his views with some care because he was in the circumstances obliged to treat volens, ex turpi causa and contributory negligence all as defeating the action, but even at that time, as I say, the courts went to great lengths to avoid the absurd outcomes which a strict application of the contributory negligence doctrine would have required.

GUMMOW J:   Now, Cook v Cook itself has to be understood in the light of the state of play in 1986.  Mr Tilmouth, who was arguing for the respondent, urged the court to follow Anns v Merton London Borough Council – namely, and this is at page 378:

that, when a prima facie duty of care exists, regard must be had to considerations negativing, reducing or limiting the scope of the duty or the class of person to whom it is owed.

What is the significance in the reaction by the plurality judgment in Cook v Cook to the prospect of Anns?  Had they, by that stage, rejected Anns earlier?  Were they sidestepping Anns?

MR MORRISON:   As I read the judgment ‑ ‑ ‑

GUMMOW J:   They do not mention in their reasons, do they?

MR MORRISON:   It is not mentioned in their reasons and I do not know what, if any, use their Honours made of that submission; it is not apparent from their judgment.

KIRBY J:   Dr Morrison, we are not concerned with ex turpi causa principles?  That has not been raised in this case in this Court?

MR MORRISON:   It was below but it is not raised here.

KIRBY J:   And volenti non fit injuria?

MR MORRISON:   Again, it was raised below but is not raised here.

GUMMOW J:   Mr Doyle, who argued for the appellant in Cook v Cook, had referred the Court to Heyman (1985) 157 CLR 424, which disfavoured Anns, I suppose.  But there is a subtext in Cook v Cook which I cannot quite read.

MR MORRISON:   Your Honours, I must say I cannot discern from the majority judgment in Cook v Cook what, if any, use was made of those particular submissions.  It is not immediately apparent.

KIRBY J:   What is the latest word on volenti in this Court?  Is it that it is not enough that you voluntarily accept the risk – you have to know the content of the risk?

MR MORRISON:   You have to know and accept the whole of the risk which came to fruition.

KIRBY J:   Where was that said?  Maybe later you can get that.

MR MORRISON:   I will take that on board and give your Honours some reference to that.  I think we have it to hand, but.

KIRBY J:   All of this has to fit together.

MR MORRISON:   If I can then pass on ‑ ‑ ‑

GUMMOW J:   We have to understand Cook v Cook in its context, I am afraid.  What was the status of Anns at that time?  Had Heyman got rid of it, do you know?  You ponder these things on a daily basis.

MR MORRISON:   I must say I can not answer your Honour’s question, but I will look to it and see if I can respond a little later, your Honour.

GUMMOW J:   My recollection is that the outright rejection of Anns is after Cook v Cook.  Heyman gave it a message – something that was coming, but the coup de grâce was later.  I may be wrong about that.

MR MORRISON:   Yes.  Your Honour may very well correctly set out the position, but I shall check before giving a response.

GUMMOW J:   All right.

MR MORRISON:   The third issue, your Honours, that we rely upon is the capricious application of a variable standard.  A knowledge‑based standard must be highly variable.  Adults will have different levels of knowledge to children, and the level of knowledge amongst both adults and children will vary.  As we have identified in our written submissions in reply, those upon whom the burden of knowledge will fall most heavily will be spouses, partners and children.  When it comes to relationships out of motor vehicle cases, the potential client of a solicitor, accountant, or surgeon is best off not pursuing any inquiries to professional competency.  Short of wilful blindness, in ignorance the client is entitled to the objective standard.

If inquires, or for that matter rumour, disclose the professional’s weaknesses, the standard of care owed may be lowered under a variable standard.  We say that the law ought not to discourage and punish prudent inquiry.  We also point to the grave difficulties which arise when, for example, you have a wife who travels in a car with a husband, knowing that from time to time the husband exceeds the speed limit, or children.  At what age do those children have to demand to be let out of the car.

KIRBY J:   That is Williams v The Government Insurance Office of New South Wales?

MR MORRISON:   Yes.  So, there are very significant difficulties about the fairness of an infinitely variable standard.  Now, to come back to the case I referred to a little earlier, Wilsher v Essex Area Health Authority [1987] QB 730, that is a case in which the majority firmly reasserted the objective standard, not in motor vehicle cases, but for professionals in English law, and the relevant passage is to be found in the judgment of Lord Justice Glidewell at 774E. There his Lordship said:

In my view, the law requires the trainee or learner to be judged by the same standard as his more experienced colleagues.  If it did not, inexperience would frequently be urged as a defence to an action for professional negligence.

The majority in the court were clearly of the view that that was the case, and reviewing the academic texts, there does not appear to be any dissent from the view that that remains the law in England in broad application, so Nettleship v Weston in England is not confined to motor vehicle cases.

KIRBY J:   Did Sir Nicolas Browne‑Wilkinson dissent on that ‑ ‑ ‑

MR MORRISON:   He dissented on that, your Honour.

KIRBY J:   So he said it was variable according to the skills and known abilities of the professional.

MR MORRISON:   His concern was that it could mean that a person who was not morally culpable could be found liable.

KIRBY J:   Well, he was getting back to no liability if no fault.

MR MORRISON:   Indeed.  But, of course, the fact of the matter is that why should not the person who goes in that case into a national health hospital and has surgery be entitled to expect the standard of care of the reasonable and prudent surgeon and not a lower standard simply because an inexperienced houseman is allocated to undertake the surgery?

KIRBY J:   The answer comes back because we do not have in Britain or Australia the sensible New Zealand Accident Compensation Act where we tied our entitlement to damages to the notion of negligence.  I am not saying that that is the ultimate resolution of the case, but that would be, I suspect, what Mr Rewell might say.

MR MORRISON:   But there is another way of looking at it in any event.  If you undertake an activity you have a degree of control over the way in which that activity is undertaken, you have control over whether or not there is insurance.  In the case of Wilsher there was insurance and that may have been a factor motivating it because unlike New South Wales public hospitals where, at least until recently VMOs were not covered by insurance, in England as at 1987 the public health system covered the activities of doctors practising in public hospitals.

But the fact of the matter is also that the person who undertakes to work as a solicitor, who undertakes to work as a doctor or as an accountant, chooses to provide a service, why should they not be held to the standard of care of the service that at least they appear to be providing rather than to be able to rely as a defence on their own inexperience?

The fourth issue, your Honours, is the length and complexity of trial.  Your Honours, an objective standard is easier to apply consistently.  It limits the factual inquiry in each case.  Insurers will inevitably place the standard of care in issue in many cases where the facts disclosed that the plaintiff may have had prior knowledge of the defendant’s capacity to exercise reasonable care.  Every passenger injured by a driver’s negligence will be cross-examined as to their observations of the driver’s skills and competence and, indeed, you may have different outcomes as between different passengers in the same vehicle.

There will be observations of what occurred in a particular trip.  There will be knowledge of what occurred on previous trips.  There will be questions as to whether the person was rumoured to drive badly.  If a husband and wife have driven together for 25 years it is entirely possible that the cross-examination on driving skills and knowledge of those driving skills could be very lengthy.  That is exactly the form of case‑by‑case inquiry that the objective standard seeks to eliminate - as Lord Macmillan said in his well‑known dictum, “eliminating the personal equation”.

Your Honours, there is one exception, or one recognised exception, to the single objective standard which we need to address, and that is the exception in respect of child defendants, and if we are dealing with this issue in point of principle we need to explain this apparent historical anomaly.  The courts have consistently said that the test is that of the reasonable child of that age, for example, McHale v Watson (1966) 115 CLR 199. You will recall that was the dart which miscarried and struck the child in the eye.

But age cannot be the criteria, otherwise we would reduce the standard of care for the elderly driver, and we do not.  We cannot point to any case where the standard of care of an 85‑year‑old driver whose eyesight and reactions have been diminished has been said to be less than that of the ordinary prudent driver.

KIRBY J:   Conceptually, how can you possibly justify this one‑off exception for children?  I mean why children and not Alzheimer’s disease?  A person with Alzheimer’s disease is a kind of child.  It is just not conceptual.

MR MORRISON:   We accept entirely what your Honour says.  If the basis is age, there is no logic in it because why should the elderly not be treated with the same sympathy as the young.  So age cannot be the test in logic.

KIRBY J:   I am getting more sympathetic to age.

MR MORRISON:   Your Honour, nor can mental capacity be the test.  We do not reduce for a lesser intellectual capacity in an adult or the fact that a person suffers from Alzheimer’s disease.  The best example of that is a very old case – Vaughan v Menlove (1837) 3 Hodges 51, which is to be found at 132 ER 490.  Your Honours, it is painfully familiar to those of us who have some farming interests that, if you store damp hay, spontaneous combustion in a haystack is a highly likely consequence and it is one which has been a significant problem in New South Wales in the early part of this year, when there was a good deal of rain.

In Vaughan v Menlove a man built his hayrick next to a barn.  There was spontaneous combustion and the barn was burnt down.  He was found liable, unsurprisingly, in an action by the owner of the barn.  He appealed to the Court of Common Pleas and his defence was, in the words of his own counsel, that because he was “remarkably stupid” he should not be liable, that is, on the variable standard he should have a diminished liability because he did not appreciate that what he was doing was a risk.  The Court of Common Pleas understandably rejected that defence.  That was one of the earlier examples of the adherence of the common law to a single objective standard.

GLEESON CJ:   But we do make an allowance for age, do we not, when assessing contributory negligence in the case of a pedestrian who has been run down?

MR MORRISON:   Yes, we do, your Honour.

GLEESON CJ:   What is the logic of that?

MR MORRISON:   Because when we are dealing with contributory negligence we are dealing with what is reasonable for the particular person and whether their damages should be reduced as a consequence of their own conduct.  We are not dealing with so much of a general standard, although it has to be measured against general standards.  But it cannot be the case, as a number of judges have pointed out, that the elderly can only cross the street at their own risk because they are not as brisk getting across.  It cannot be the case that a person who has diminished reactions through age cannot walk around the streets of their own town without being at severe risk and without any remedy if they come to grief.

We say, your Honours, that in respect of the exception for children it cannot be justified because of age and it cannot be justified because children have a lesser intellectual incapacity.  Neither of those propositions stands up to examination.  The only logical explanation for children owing a lower and variable duty of care is to be found in the nature of the activity.  The child who throws the dart in the classroom is engaged in a childish activity and owes a child’s duty of care – McHale v Watson.  If that same child drives a car, then that is an adult activity and the child owes an adult’s duty of care.

GUMMOW J:   Now, the position of children is, I think, as one might expect, explained very well by Justice Windeyer at trial in McHale v Watson 111 CLR 384 at 396 to 397. He refers to Vaughan v Menlove and he says to have regard to the fact that this is a child is not to have regard to an idiosyncrasy and so forth.

MR MORRISON:   Yes, your Honour, that explanation is not entirely satisfying.  What he is doing and, indeed, what subsequently Justice Kitto did was to say, well, it is a partially objective test.  The test is what is reasonable for a child of that age, not what is reasonable for that particular child.  That is still not a truly objective test and we say that the only logical explanation that can explain the exception in respect of children is the nature of the activity and ‑ ‑ ‑

GUMMOW J:   Well, there is also the question of the responsibility of the parents, is there not?  The parents were sued as well in McHale v Watson.

MR MORRISON:   Yes.

GLEESON CJ:   Is not another possible alternative explanation of the position in relation to children that where you are in an area of legal responsibility, whether it is tortious liability or criminal responsibility, the law does not attach full responsibility to children?

MR MORRISON:   Yes, although the relationship between tort law and criminal law was well discussed in Nettleship v Weston and it was pointed out that the criminal law demands a high standard in some circumstances and, again, it depends upon the nature of the activity.  If the child chooses to drive a car, which is an adult activity, the child will be as liable in criminal law as an adult who drives the car.

GLEESON CJ:   Unfortunately, the word “child” itself covers a range of people from infants of tender years perhaps to 17‑year‑old car thieves.

MR MORRISON:   It does, and the outcome, of course, historically has always varied according to age and there are some significant anomalies in what has occurred in terms of – for example, in contributory negligence there is an old Scottish case where a three-year-old was found liable but in modern times, round about six seems to have been the cut‑off point in contributory negligence.  In terms of liability as a defendant the position is less clear in part because children are rarely sued.

KIRBY J:   You are not trying to bring your client into the exceptional category of child?  He was 16 plus, was he not?

MR MORRISON:   He was.  He was 16.  He was in the same position as the son of the appellant, who had a learner’s licence – they call it learner’s licences these days in New South Wales rather than learner’s permits – and had an almost identical experience, both practical and in terms of instruction.

KIRBY J:   Would you just put on the record that you are not seeking to bring him within the category of a child?

MR MORRISON:   That is clear, your Honour.  So that we say, to paraphrase an authority with which your Honours will be well familiar, “When I act as a child I am judged as a child, but when I put off my childish things I assume the responsibilities of an adult”; 1 Corinthians 13.  But on the other hand, an adult who engages in a childish activity – an example might be pulling a chair out from under someone as a joke when they are sitting down – still must owe the higher adult duty of care.  We say that is the only principled way of explaining the apparent exception in respect of children; that you categorise the nature of the activity.  It cannot be a function of age, it cannot be a function of intellectual capacity.

That then raises the question as to whether it is just that someone who may not have been at fault should be held liable.  The inexperienced houseman in Wilsher v Essex is an example.  We say, yes, for two reasons.  In distributive justice where you have two innocent parties, why should not the party actively engaged in the activity bear the responsibility?

GUMMOW J:   What do you mean by distributive justice?  It is a phrase used by Lord Steyn from time to time and I have never understood it.

MR MORRISON:   As I understand it, when you are trying to distribute responsibility and ‑ ‑ ‑

GUMMOW J:   Distribute?

MR MORRISON:   Trying to allocate, trying to apportion responsibility, trying to find out who has the best opportunity to avoid a particular tort or unfortunate event occurring.

KIRBY J:   Not big pockets?  We are not thinking of big pockets, of course, we are putting them entirely out of our mind.

MR MORRISON:   We cannot put that entirely out of our mind ‑ ‑ ‑

KIRBY J:   No, we certainly cannot.

MR MORRISON:    ‑ ‑ ‑ for the very reasons your Honour so cogently put a little earlier.

GUMMOW J:   But does it have any – if we can get the debate to some level – does it have any antecedents in classical philosophy, and if so, what?

MR MORRISON:   I cannot answer your Honour.  I do not know.

CRENNAN J:   An Aristotelian notion, I think.

MR MORRISON:    I am sorry, your Honour?

CRENNAN J:   It was an Aristotelian notion, I think.

MR MORRISON:   It may well have been, but it is certainly referred to in Nettleship v Weston and elsewhere in the English cases.  But we say, well, why should not the party that actively engages in the activity bear the responsibility?  They may not be morally at fault but why should not they be legally at fault?  They are the party who can best insure.  We know of third party insurance and, indeed, there are few professionals who are not insured.

I accept that nothing untoward –

happened until he took the wheel at Larapinta Drive -

I accept that up until that point of time he responded to such instruction as was given.

How could the judge infer anything else other than that that compliance would continue if instruction was given from that point onwards, which it was not?  So the absence of any statement in retrospect by Mr McNeilly that, “Yes, I would have followed instructions if I’d been given them” is irrelevant.  The judge had to infer that Mr McNeilly would have followed instructions had he been given them but he was given none.

GLEESON CJ:   Mr Rewell, I am just anxious to ensure that Dr Morrison is going to have sufficient time for reply.  How long do you think you require?

MR REWELL:   I should not be too much longer, your Honour.

GLEESON CJ:   Thank you.

MR REWELL:   The argument that there was no point in instructing Mr McNeilly not to accelerate because he had been told that by his grandmother in some other context is hardly apt.  Of course, there is always a point in reminding and reinforcing instructions previously given, particularly in a wholly different place.  It cannot be asserted seriously that when someone is learning to drive, each instruction ought be given once and no more than once, that there is not any purpose in repetition, there is no point in reminding or reinforcing somebody.  That, of course, is wrong and it is contrary to the findings of the trial judge that ongoing instruction was required, which frankly is plain logic.

So we submit that on the issue of causation the trial judge and the Court of Appeal were both entitled to infer and, indeed, required to infer that appropriate instruction would have been complied with and it would have made a difference had Mr McNeilly been instructed as to the prospects that he might face and as to how to deal with them, one can have little doubt that the outcome would have been different.

One complaint we made was that the trial judge erred in assessing contributory negligence at only 30 per cent in circumstances where giving such instructions would probably have avoided the accident altogether and was something which clearly should have been part of the role that Mr Imbree took upon himself, whether that role be described as the role of an instructor or not.  I think that covers also the issue of ‑ ‑ ‑

KIRBY J:   But if the cause was panic, as you said it was, all the instructions in the world, if you say, “Don’t panic, don’t panic,” that is not going to help in practicality.

MR REWELL:   But the inference is that he would not have panicked if he had known to expect what happened and been instructed as to what to do about it.  He panicked, as Justice Tobias said, because he suddenly found something unexpected about which he had no knowledge, so he did not expect it and he did not know how to respond and the product of those two elements, both of which could and should have been avoided by proper instructions ‑ ‑ ‑

KIRBY J:   But as Dr Morrison pointed out, Romeo and many other cases say, you cannot fix what has to be done by reference to the specific, you have to contemplate what does the instructor say and does he say, “Now, if a camel comes across your path, you have to know the strange behaviour of camels”, or kangaroos.  Now, I have seen kangaroos stop right in the middle of the road and look at you.  So, I mean, how many things does the instructor have to say?

MR REWELL:   We dealt with this in our written submissions by saying that what happened was something which was entirely foreseeable.  It was not some remote prospect like the emergence of a camel.  It was something which was entirely foreseeable and therefore Mr Imbree to see and understand and teach Mr McNeilly how to deal with.  It cannot be said that Mr Imbree himself was unaware of any of these potential events.  The evidence in that regard is at page 81 and it commences at line 22 and the evidence goes over pages 82 and 83 where I put to Mr Imbree serially all of the different things that could have confronted and most of which did confront Mr McNeilly, and said to him, “Look, your experience” – and he was a very experienced off‑road driver – “was such that you knew these things might crop up”, and there are a string of concessions on pages 81, 82, 83 and 84 about Mr Imbree’s own knowledge as to these matters. 

If he had imparted that knowledge to Mr McNeilly, the accident, in all probability, would not have occurred.  That is why we say it is said from the outset that, leaving aside the Cook v Cook issue, the assessment of contributory negligence was manifestly inadequate. 

How does this Court dispose of the appeal, the application and the matter in general?  There are a number of alternatives.  If this Court decides that Cook v Cook ought not be overturned but ought be re‑expressed in more contemporary language, as we contend should be the situation, then, firstly, we submit that this appeal should be dismissed.  Secondly, we submit that our application for special leave to appeal be granted, and, thirdly, that the appeal ought be upheld on the basis that only Justice Tobias properly applied what was said in Cook v Cook. 

KIRBY J:   Is that second set of submissions defensive?  In other words, is your primary submission that we should simply dismiss the appeal or is your primary submission that Justice Tobias was correct and we should proceed to substitute his preferred orders? 

MR REWELL:   It depends on what the Court does with Cook v Cook.  The two are intrinsically related.  If the Court decides that Cook v Cook stands, then we submit that the Court dismisses this appeal and moves on to our appeal. 

GUMMOW J:   Looking at Cook v Cook for a minute, what does one make of what Justice Basten said at 751, paragraph 51 of the reasons? 

It was not in dispute at the trial, or on appeal, that the plaintiff was in some sense the instructor, supervisor or overseer of the defendant’s driving.

MR REWELL:   Yes.  Precisely the same as the conclusion was in Cook v Cook, in some sense either the instructor, or acting in the role of the instructor. 

GUMMOW J:   So we are to understand that statement in the light of the passages of Cook v Cook we were discussing earlier this afternoon?

MR REWELL:   Yes, it is.  Yes, your Honour, it is precisely the same position; not a professional instructor but a person standing in that role. 

So that to go back a moment, if Cook v Cook stands, that, we would respectfully submit, requires consideration of our appeal and consideration of whether only Justice Tobias applied the case correctly and we have summarised what we say about that in our submission and I do not need to repeat them.  If, on the other hand, this Court overrules Cook v Cook, the Court will then consider what ought be done in connection with the disposition of the matter. 

It is our contention that the argument concerning causation made by the appellant has no basis, that causation was correctly found by the trial judge and indeed it was obvious.  As I have said, it was the only inference the judge could draw.  So that deals with the issue of causation which the Court would have to do in those circumstances and then Court moves to the question of contributory negligence.  It is our submission in those circumstances that the case need not go back.  It was our initial view, as I think is Dr Morrison’s view, that the case would have to go back to the Court of Appeal, if not to the trial judge, for consideration of contributory negligence anew. 

But having, as I have said, reflected on the decision of Justice Beazley, it is not necessary.  Justice Beazley attributed it seems everything Mr McNeilly did to carelessness.  Her Honour came to a conclusion as to contributory negligence in that context and the Court ought simply apply that conclusion, the effect of which would be to reduce contributory negligence as the Court of Appeal found it from 66 per cent to 50.  That removes the need, we would say, to remit the matter to the Court of Appeal for redetermination in the event that this Court overturns Cook v Cook, which of course is contrary to our primary submission.

KIRBY J:   Remind me again, Justice Beazley I thought was 50 per cent and Justice Basten was two thirds.

MR REWELL:   Yes, but it was Justice Beazley who looked at all of the conduct of Mr McNeilly as carelessness.

KIRBY J:   So you submit that in that event we would substitute the 50 per cent reduction?

MR REWELL:   Yes.  It is consistent that Justice Basten assessed a higher degree of contributory negligence because he assessed a lower degree of culpability on the part of Mr McNeilly.  So, whilst Justices Beazley and Basten, on the face of things, are inconsistent, in fact they are not in terms of the outcome when one considers that the one, Justice Beazley, attributed everything to carelessness, the other, Justice Basten, attributed only a part of Mr McNeilly’s conduct to carelessness.  Therefore, his culpability went down.  Using Podrebersek, the plaintiff’s culpability went up.  Unless there is anything further on which I can assist the Court, thank you, your Honours.

GLEESON CJ:   Yes, Mr Morrison.

MR MORRISON:   Thank you, your Honours.  I think the matters that I would have sought to reply on have all been dealt with from the Bench and the only matters I need to deal with are the pieces of homework that we were left immediately before lunch. 

The first of those is the question that Justice Gummow asked about Anns v Merton London Borough Council.  The answer to your Honour’s question is this.  When Cook v Cook was decided, Anns had already been criticised and not followed on similar facts in Southerland Shire Council v Heyman.  Cook v Cook was argued in late August 1986.  Anns was further criticised and effectively rejected as the law in Australia in San Sebastian in November 1986, that is, between hearing and judgment in Cook v Cook, and Cook v Cook was decided in December 1986.

The second matter that we were asked about was Justice Kirby’s question about the apportionment legislation in the Northern Territory.  We have copies to provide to the Court.  It is the Law Reform (Miscellaneous Provisions) Act 1946 section 16(1). Having looked at it, it is in almost identical terms to the sections which came in throughout the other Australian jurisdictions.

GUMMOW J:   What year, 1946?

MR MORRISON:   Yes, 1946, a good deal in advance of New South Wales.  The third question that we were asked was a question from Justice Hayne about rules for learners and others.  The basis of the rules is to be found in the Motor Vehicles Act 1949 (NT). Section 9 simply permits learner licences to be issued. The motor vehicle regulations appear to authorise the provisions of the road users handbook and we provide to the Court copies of the relevant page of the handbook. I draw attention simply to this, that the Rules For Learner Licence Holders:

you may not exceed 80 km/h unless under the direct supervision of an authorised driving/motorcycle instructor ‑

So for motor cars the limit is 80 kilometres an hour, as it is in every other Australian jurisdiction for learner drivers.  There are some other restrictions:  zero blood alcohol, that is the same throughout Australia; L‑plates; and be accompanied by a fully licensed, not provisional, driver.

HAYNE J:   Who must supervise the learner.

MR MORRISON:  Yes, and there is no requirement of any experience or training on the part of the driver in the Northern Territory and that is the same, as we apprehend it from our fairly brisk researches, throughout Australia, that is, a person who has obtained a full licence may immediately supervise a learner.

KIRBY J:   This is no doubt accurate but we may need the actual regulations and provisions of the Act.

MR MORRISON:   Your Honour, that is not the way the legislation works.  Your Honour will look in vain in the Act and the regulations for something which lays these things down.  The regulations authorise the authority to simply publish what it does and that is the basis of it.

KIRBY J:   I would like to have a look at that power because otherwise this just looks like a textbook.

MR MORRISON:   Yes.  We will provide your Honour with reference to the – perhaps we can send it up to your Honour’s chambers ‑ ‑ ‑

KIRBY J:   You say it is section 9 of the Motor Vehicles Act?

MR MORRISON: Section 9 is the authority for the issue of learner licences, but the Act itself sets down no rules for learners or instructors and the regulations do no more than permit the issuing of a handbook setting out these instructions.

GLEESON CJ:   Hang on, the document you gave us says, “There are also rules” and it says, “The following apply to class C (car) only”.  Is that not true?

MR MORRISON:   No, that is correct, but they are the rules and this is where they are to be found, as we, on our research on an hour at lunchtime, found it.

GLEESON CJ:   What we would like you to let us know, after you have had an opportunity to look more closely, is the source of the rule making power and the actual terms of the rules if these are not the rules themselves.

MR MORRISON:   We will provide that to your Honours.

GLEESON CJ:   Thank you.

MR MORRISON:   The fourth question was Justice Heydon’s question about what contributory negligence was argued.

HEYDON J:   Yes, I think I understand the position about that now.  It culminates on page 773, I think.

MR MORRISON:   Well, it is perhaps helpful if we simply hand up a copy of two pages of the respondents’ submissions at first instance and just draw attention to paragraph 143 of those submissions in which these words appear:

It was the Plaintiff who failed to warn the First Defendant of the potential for debris on the roadway, and how to deal with it.  It was the Plaintiff who failed to demonstrate to the First Defendant, or to instruct the First Defendant how to deal with, a loss of traction or control on the soft edges of the roadway.  It was the Plaintiff who failed to warn the First Defendant of the propensity of the vehicle to overturn if swerved suddenly, particularly on a soft surface.

The only significance of that is that there is an absolute silence about do not accelerate in a dangerous situation, not suggested, not submitted, not argued below.  His Honour, however, added that as part of his findings.

KIRBY J:   These are the defendants’ submissions at trial or in the Court of Appeal?

MR MORRISON:   At first instance.  Unless there is anything further, those are our submissions, your Honours.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter and the Court will adjourn until 9.30 tomorrow in Sydney.

AT 3.58 PM THE MATTER WAS ADJOURNED