Reported Decision: (2007) Aust Torts Reports 81-895 Appeal Outcome: Special leave application granted by the High Court - 8 February 2008 (S385/2007); Special leave application referred to the Full Court - 8 February 2008 (S392/2007); Appeal allowed - 28 August 2008 - Imbree v McNeilly; McNeilly v Imbree [2008] HCA 40
New South Wales
Court of Appeal
CITATION: McNEILLY v IMBREE [2007] NSWCA 156 HEARING DATE(S): 29 and 30 March 2007
JUDGMENT DATE:
2 July 2007JUDGMENT OF: Beazley JA at 1; Tobias JA at 16; Basten JA at 49 DECISION: (1) Allow the appeal in part and the cross-appeal in part; (2) Direct the parties to file within 14 days short minutes of orders to give effect to the findings set out by Basten JA at [173]-[180], together with written submissions on any issue (including costs) as to which the parties do not agree. CATCHWORDS: NEGLIGENCE – duty of care – standard of care owed by inexperienced driver to driving instructor – where knowingly involved in joint criminal activity – whether duty abrogated by voluntary assumption of risk - NEGLIGENCE – contributory negligence – where driving instructor failed to give instructions to inexperienced driver - JURISDICTION – where action is brought in New South Wales with respect to motor vehicle accident occurring in the Northern Territory – whether the law of New South Wales or the Northern Territory applies - CHOICE OF LAW – operation of Motor Accident Compensation Act (NT) s 5 – effect on choice of law rules - DAMAGES – gratuitous domestic assistance – household improvements LEGISLATION CITED: Judiciary Act 1903 (Cth), s 80
Interpretation Act 1987 (NSW), s 12
Motor Vehicles (Third Party Insurance) Act 1942 (NSW), s 14
Road Transport (General) Act 1999 (NSW), s 10
Workers Compensation Act 1987 (NSW), ss 60AA, 151F, Div 3, Pt 5
Workers Compensation Act 1999 (NSW), ss 122, 123, Ch 5
Motor Accident Compensation Act (NT), ss 5, 7, 9, 13, 17, 41, Part III
Motor Vehicles Act (NT), Pt V
Law Reform (Contributory Negligence) Act 1945 (UK)CASES CITED: APLA Ltd v Legal Services Commissioner (NSW) (2005) 79 ALJR 1620
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
Cook v Cook (1986) 162 CLR 376
Cusack v Stayt [2000] NSWCA 242, (2000) 31 MVR 517
Frankom v Woods (NSWCA, 1 October 1980, unrep)
Gordon v Ross [2006] NSWCA 157
Government Insurance Office (NSW) v Mackie (1990) Aust Torts Rep 81-053
Guidera v Government Insurance Office (NSW) (1990) 11 MVR 423; [1990] Aust Torts Rep 81-040
Hamilton v Merck & Co Inc [2006] NSWCA 55
Henwood v The Municipal Tramway Trust (South Australia) (1938) 60 CLR 438
The Insurance Commissioner v Joyce (1948) 77 CLR 39
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65
Joslyn v Berryman (2003) 214 CLR 552
Kruger v The Commonwealth…
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Details
- AGLC
- McNeilly v Imbree [2007] NSWCA 156
- Case
- [2007] NSWCA 156
- Decision Date
CaseChat Overview and Summary
McNeilly v Imbree concerned an appeal to the New South Wales Court of Appeal regarding a motor vehicle accident that occurred in the Northern Territory. The appellant, Ms. McNeilly, was the driver of a vehicle, and the respondent, Mr. Imbree, was her driving instructor. The dispute arose from injuries sustained by Mr. Imbree during a driving lesson, which Ms. McNeilly alleged were caused by Mr. Imbree's negligence.
The Court of Appeal was required to determine several key legal issues. Firstly, it had to consider the standard of care owed by an inexperienced driver to their driving instructor, particularly in circumstances where the driver was knowingly involved in joint criminal activity. Secondly, the Court had to assess whether the respondent's voluntary assumption of risk abrogated any duty of care owed to him. Thirdly, the Court considered the issue of contributory negligence, specifically whether the driving instructor's failure to provide adequate instructions contributed to the accident. Finally, the Court had to determine which jurisdiction's law applied to the case, given that the action was brought in New South Wales but the accident occurred in the Northern Territory, and the effect of the *Motor Accident Compensation Act* (NT) on choice of law rules.
In its reasoning, the Court of Appeal, led by Basten JA, addressed the complex interplay between negligence, voluntary assumption of risk, and contributory negligence in the context of a driving lesson. The Court examined the nature of the duty of care owed by a learner driver and considered whether the respondent's participation in an activity that could be construed as criminal activity (implied by the context of a driving lesson involving potentially risky manoeuvres) altered the standard of care or the applicability of the defence of voluntary assumption of risk. The Court also analysed the respondent's alleged contributory negligence in failing to provide proper instructions. The Court ultimately allowed the appeal in part and the cross-appeal in part, directing the parties to file short minutes of orders to give effect to the findings.
The Court of Appeal was required to determine several key legal issues. Firstly, it had to consider the standard of care owed by an inexperienced driver to their driving instructor, particularly in circumstances where the driver was knowingly involved in joint criminal activity. Secondly, the Court had to assess whether the respondent's voluntary assumption of risk abrogated any duty of care owed to him. Thirdly, the Court considered the issue of contributory negligence, specifically whether the driving instructor's failure to provide adequate instructions contributed to the accident. Finally, the Court had to determine which jurisdiction's law applied to the case, given that the action was brought in New South Wales but the accident occurred in the Northern Territory, and the effect of the *Motor Accident Compensation Act* (NT) on choice of law rules.
In its reasoning, the Court of Appeal, led by Basten JA, addressed the complex interplay between negligence, voluntary assumption of risk, and contributory negligence in the context of a driving lesson. The Court examined the nature of the duty of care owed by a learner driver and considered whether the respondent's participation in an activity that could be construed as criminal activity (implied by the context of a driving lesson involving potentially risky manoeuvres) altered the standard of care or the applicability of the defence of voluntary assumption of risk. The Court also analysed the respondent's alleged contributory negligence in failing to provide proper instructions. The Court ultimately allowed the appeal in part and the cross-appeal in part, directing the parties to file short minutes of orders to give effect to the findings.
Orders
Orders of the court
(1) Allow the appeal in part and the cross-appeal in part;
(2) Direct the parties to file within 14 days short minutes of orders to give effect to the findings set out by Basten JA, together with written submissions on any issue (including costs) as to which the parties do not agree.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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