McNeilly v Imbree - [2007] NSWCA 156

No judgment structure available for this case.

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 2007

JUDGMENT 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 (1997) 190 CLR 1
Marsland v Andjelic (1993) 31 NSWLR 162
Matthews v McCullock of Australia Pty Ltd [1973] 2 NSWLR 332
Nicholson v Nicholson (1994) 35 NSWLR 308
Perrett v Robinson (1988) 169 CLR 172
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Radford v Ward (1990) Aust Tort Rep 81-064
Sharman v Evans (1977) 138 CLR 563
Skulander v Willoughby City Council [2007] NSWCA 116
Smith v Jenkins (1970) 119 CLR 397
Solomons v District Court (NSW) (2002) 211 CLR 119
State Rail Authority (NSW) v Brown [2006] NSWCA 220
Stevens v Head (1993) 176 CLR 433
Sweedman v Transport Accident Commission (2006) 80 ALJR 646
Wieben v Wain (1990) Aust Torts Rep 81-051 (QSC)
Australian Constitutional Law and Theory (4th ed, 2006), pp 154, 157-161
The Law of Torts (9th ed, 1998), pp 341, 342
The Law of Torts in Australia (4th ed, OUP, 2007), pp 444, 445

PARTIES: Jesse McNeilly – First Appellant/First Cross-Respondent
Qantas Airways Limited – Second Appellant/Second Cross-Respondent
Paul Anthony Imbree – Respondent/Cross-Appellant

FILE NUMBER(S): CA 40568/06

COUNSEL: K. Rewell SC/M. Cleary – Appellants
A. Morrison SC/A. Stone - Respondent

SOLICITORS: TL Lawyers – Appellants
Turner Whelan - Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20055/05

LOWER COURT JUDICIAL OFFICER: Studdert J

LOWER COURT DATE OF DECISION: 22 August 2006

LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 680

CA 40568/06
SC 20055/05

BEAZLEY JA
TOBIAS JA
BASTEN JA
2 July 2007

McNEILLY & ANOR v IMBREE

The plaintiff, Mr Imbree, was injured when the vehicle in which he was travelling rolled on an unsealed road in the Northern Territory. The defendant, who was the driver of the vehicle, was sixteen years old and had no driving licence at the time of the accident. The plaintiff was sitting next to the driver and was acting as the supervisor of the defendant’s driving. The defendant lost control of the vehicle. As a result of the accident, the plaintiff suffers from tetraplegia.

The trial judge found in favour of the plaintiff and assessed his damages at over $11 million, with contributory negligence being assessed at 30%.

The defendant appealed in relation to the finding on liability, the calculation of contributory negligence and the assessment of damages. The plaintiff cross-appealed against the finding of contributory negligence and the award of damages and contended that liability should be upheld on an alternative basis.

On the appeal, the issues for determination were:

(1) As to the finding on liability:

(a) Whether any duty of care owed by the driver to his passenger was excluded because they were engaged on a common course of illegal activity.

(b) Whether any duty was abrogated by a voluntary assumption of risk by the plaintiff.
(c) Whether there was a breach of the duty of care as between the defendant (an inexperienced driver) and the plaintiff (his instructor).

(2) As to contributory negligence:

(a) Whether the defendant should have been allowed to rely upon a failure by the plaintiff to give instructions to the defendant, a matter which was not expressly pleaded in his defence.
(b) Whether the assessment of contributory negligence was either too high (the plaintiff sought a nil assessment) or too low (the defendant sought an assessment of not less than 70%).

(3) As to assessment of damages:

(a) Whether the trial judge was correct in applying the provisions of the Motor Accident Compensation Act (NT).

(b) Whether the trial judge correctly assessed the life expectancy of the plaintiff.

(c) Whether the plaintiff was entitled to an award for past gratuitous domestic assistance, during the period when he had 24-hour professional care.

(d) (On the cross-claim) whether the plaintiff should have been awarded an amount on account of gratuitous domestic assistance for the future, in circumstances which did not differ from the past.

(e) Whether the plaintiff was entitled to the cost of an “environmental control unit” (worth $300,000), in circumstances where he had 24-hour professional care.

(f) Whether the plaintiff should have obtained an amount for the cost of a “case manager” in circumstances where he enjoyed 24-hour a day professional care.
(g) (On the cross-claim) whether the trial judge was correct in deducting an amount of $500,000 from the cost of the new house necessitated by the plaintiff’s physical disabilities.

The Court of Appeal held:

As to liability
In relation to (1)(a)
(per Basten JA, Beazley and Tobias JJA agreeing)

1. Where the illegality consists of a breach of a statutory provision the issue is whether it is the intention of the statute penalising the particular conduct to affect civil responsibility: [57].

Smith v Jenkins (1970) 119 CLR 397; Henwood v The Municipal Tramway Trust (South Australia) (1938) 60 CLR 438, applied. Matthews v McCullock of Australia Pty Ltd [1973] 2 NSWLR 331, considered.

2. The defence relied on common law principle rather than the relevant statutory scheme and was correctly rejected by the trial judge: [61].

In relation to (1)(b)
(per Basten JA, Beazley and Tobias JJA agreeing)

3. The principle of volenti non fit injuria can be treated as a reduction in the standard of care due to the existence of a special relationship between the plaintiff and defendant, which does not provide a complete defence in all circumstances: [63].

TheInsurance Commissioner v Joyce (1948) 77 CLR 39, considered. Cook v Cook (1986) 162 CLR 376, applied.

4. The plaintiff’s claim must be assessed on the basis of the appropriate standard of care to be applied in the case of an inexperienced driver and his driver or instructor. The trial judge was not in error in rejecting the defence based on voluntary assumption of risk: [64].

In relation to (1)(c)
(per Beazley and Basten JJA)

5. The defendant’s contention that there was no duty of care in the circumstances of this case is inconsistent with the approach in Cook v Cook. The relationship between the plaintiff and defendant did give rise to a duty of care: [65]

Cook v Cook (1986) 162 CLR 376, applied. Cusack v Stayt [2000] NSWCA 242, (2000) 31 MVR 517, distinguished.

6. The trial judge wrongly held that the defendant’s actions in deliberately accelerating while steering sharply towards the centre of the road was an act of carelessness beyond what could be attributed to inexperience: [79]. The defendant breached his duty of care to the plaintiff in swerving off the road rather than steering around the obstruction, which was a course of action attributable to carelessness rather than inexperience: [13], [83].

(per Beazley JA)

7. The defendant was negligent in accelerating out of the soft edge of the road, when he appreciated from previous instruction and common sense not to accelerate out of a problem: [12]

(per Tobias JA, dissenting)

8. The defendant’s manoeuvre in swerving off the road to avoid an obstruction was precisely the type of reaction to be expected of an inexperienced driver. There was no additional carelessness or negligence on the part of the defendant over and above the standard of care which could be required of an unqualified and inexperienced driver: [29]. Accordingly, the appeal should be upheld: [42].

As to contributory negligence
In relation to (2)(a)
(per Basten JA, Beazley and Tobias JJA agreeing)

9. The trial judge did not err in rejecting the claim that the plaintiff failed to exercise reasonable care for his own safety by permitting the defendant, first, to drive at all, and secondly, to drive on the particular road on which the accident occurred. The evidence before the trial judge did not support a finding that the road on which the accident occurred was not wholly unsuitable for an inexperienced driver under proper instruction: [96].

10. Although the failure by the plaintiff to give instructions to the defendant was not expressly pleaded, it was raised during the trial without objection by the plaintiff and properly taken into consideration by the trial judge. An amendment is not required at the appeal stage: [103].

In relation to (2)(b)
(per Basten JA, Tobias JA agreeing)

11. The plaintiff’s failure to give appropriate instructions to the defendant significantly contributed to the accident and involved a failure to take care for his own safety: [110]. It is difficult to justify the conclusion that, as between an instructor and pupil, the pupil must bear a greater proportion of responsibility than the instructor. The plaintiff’s contributory negligence should be assessed at two-thirds: [48], [111].

(per Beazley JA, dissenting)

12. It was incumbent upon the plaintiff to provide adequate instruction to the appellant in relation to the care required when driving under unfamiliar conditions. In the circumstances, the plaintiff and defendant were equally culpable and contributory negligence should be assessed at 50 per cent: [15].

As to the assessment of damages
(per Basten JA, Beazley and Tobias JJA at [1] and [18] agreeing)

In relation to (3)(a)

13. The question of whether the assessment of damages should be made according to New South Wales or Northern Territory law is answered by reference to the law of New South Wales: [114].

14. Under general law, the assessment of damages in a civil tort action should be decided according to the law of the place where the accident occurred. It was not submitted that there are any New South Wales statutory provisions which affect the operation of the general law choice of rules for motor accident compensation. Accordingly, Northern Territory law is to be applied in the calculation of damages: [123].

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; Sweedman v Transport Accident Commission (2006) 80 ALJR 646; Guidera v Government Insurance Office (NSW) (1990) 11 MVR 423; [1990] Aust Torts Rep ¶81-040, considered.

15. The Motor Accident Compensation Act (NT) did not vary the general choice of law rules. Accordingly, the trial judge did not err in assessing damages in accordance with s5(1)(b) of that Act: [137].

Kruger v The Commonwealth (1997) 190 CLR 1; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; Solomons v District Court (NSW) (2002) 211 CLR 119

In relation to (3)(b)

16 The trial judge’s assessment of the life expectancy of the plaintiff was open to him on the evidence. The trial judge did not err in approaching the question of damages based on a life expectancy of 85% of normal years: [143].

In relation to (3)(c) and (3)(d)

17 The trial judge’s findings in relation to past domestic assistance should be upheld. In the circumstances, the calculation of future gratuitous assistance should be three hours per week less than the past calculation of gratuitous assistance: [150].

In relation to (3)(e)

18. In the circumstances, particular leeway must be given to the judgment of the trial judge in assessing the reasonableness of the “environmental control unit” in the context of the plaintiff’s care regime: [158].

Sharman v Evans (1977) 138 CLR 563, considered.

In relation to (3)(f)

19. The defendant did not establish error on the part of the trial judge with respect to the allowance for a case manager: [164].

In relation to (3)(g)

20. The proper exercise to be undertaken in assessing damages relating to housing improvements is not to discount the cost of home modifications because they would provide a capital gain to the plaintiff but to calculate the reasonable cost of alternative suitable accommodation: [169].

Marsland v Andjelic (1993) 31 NSWLR 162; Nicholson v Nicholson (1994) 35 NSWLR 30, considered.

21. The trial judge correctly discounted the value of the upgrade in the desirability of the plaintiff’s property, for which the defendant was not required to pay: [172].

CA 40568/06
SC 20055/05

BEAZLEY JA
TOBIAS JA
BASTEN JA
2 July 2007

McNEILLY & ANOR v IMBREE

Judgment

1 BEAZLEY JA: I have had the benefit of reading in draft the judgment of Basten JA. I agree with his Honour’s conclusions on liability and damages and with his reasons relating to damages. I do not agree with his Honour’s conclusion on contributory negligence. His Honour’s extensive review of the facts and the law enables me to express my views briefly.

2 As to liability, I would take a slightly different approach to both his Honour and the trial judge.

3 The accident in which the respondent was injured occurred when the appellant was driving a Toyota LandCruiser in an easterly direction on Larapinta Drive towards Hermannsburg in the Northern Territory. Larapinta Drive was a gravel road which contained corrugations. The first appellant (the appellant), who at the time of the accident was aged 16, held neither a driver licence nor a learner licence. The respondent was seated in the passenger’s seat beside the appellant. The trial judge found and, it is accepted on the appeal, that the respondent was acting in the capacity of a driving instructor.

4 The accident occurred in circumstances where the appellant observed a shredded tyre in front of him on the roadway about 50m away. When he was about 30m away from the tyre, the appellant steered the vehicle to the left. He felt the tyres of the vehicle dig into the sand on the left-hand, nor northern, side of the road. The trial judge recorded at [13] that the appellant tried to correct the vehicle to steer off to the right and he accelerated. The appellant said the vehicle swerved to the right more “radical or quicker” than he expected. He said:

“I think at that stage because I’ve panicked, I’ve accelerated the vehicle. It swerved off to the right like I said. Pretty much as soon as it swerved off to the right, I noticed there was a ditch in front of me being the right-hand side of the road. Once again as soon as I saw the ditch I’ve again correct the vehicle to the left, kept accelerating at that time.”

5 His evidence continued:

Q. How hard did you steer back to the left when you saw the ditch on the right-hand side of the road approaching?

A. Quite sharply because at that stage I was panicking because the vehicle actually swerved – was about to swerve off the road, so I’ve panicked, accelerated the vehicle and turned the car to correct it.”

6 The trial judge, Studdert J, essentially accepted the appellant’s account of the accident. His Honour concluded at [39]:

“… it was the sharp change of direction to the left after the [appellant] had crossed to the incorrect side of the road and to the edge of it which, when coupled with the acceleration, caused the vehicle to move into a position where it overturned.”

7 His Honour was aided in this conclusion by the expert evidence of Mr Wingrove. His Honour referred to Mr Wingrove’s report dated 31 January 2006, where Mr Wingrove had commented upon the significance of the acceleration at the time that the appellant steered to the left, as this was what caused the vehicle to oversteer. Mr Wingrove expressed the opinion that it was the acceleration which was the initiating error that caused the accident.

8 Having determined the cause of the accident, his Honour then determined that the appellant had been negligent. He said, at [49] that the deliberate acceleration by the appellant introduced an element of carelessness over and above what could be attributed merely to inexperience. In reach that conclusion, and having regard to the inexperience of the appellant, his Honour applied the principles stated by the High Court in Cook v Cook (1986) 162 CLR 376 at 382; [1986] HCA 72. The acceleration to which his Honour referred in this finding, was acceleration back towards the centre of the road from the southern edge, not the initial acceleration when the vehicle was on the left-hand, or northern, side of the road and the appellant felt the wheels catch in the soft edge. His Honour’s finding of negligence was based at least in part upon the evidence that the appellant had been instructed not to attempt to accelerate out of a problem and also because of the appellant’s answer, that commonsense would have suggested that the thing to do was to take his foot off the accelerator.

9 The appellant’s driving experience was not only very limited in general terms, but his experience driving in the unusual and challenging circumstances of outback Australia was only of approximately two and a half hours duration. During that time, he had driven well. The appellant had had no formal driver education. He had been “told” by his grandmother, who had taken him driving in sand hills in Sydney, “never to accelerate” out of a problem, a matter to which I have referred above. That was the fundamental error that the appellant made here. The respondent did not reinforce this basic driving tenet by instruction at any time during the trip which ended in the occurrence of the accident.

10 In seeking to answer the question whether the appellant’s acceleration was born of inexperience or involved a breach of they duty of care owed by the appellant to the respondent, it is relevant to have regard to the fact that the appellant knew, as part of his general appreciation of what should and should not be done in the course of driving in the spectrum of conditions that confront any driver, for example, rain, slippery roads and non-bitumen road conditions, that he should not accelerate out of trouble.

11 It is also important to keep in mind precisely what the appellant said. He said that having driving into the soft edge of the road, “the vehicle reacted … in a more radical or quicker way than I expected”. This evidence was important because it indicated that the appellant was accelerating at that time. The expert evidence of Mr Wingrove was that the principal error made by the appellant which caused the accident was “the acceleration” out of the soft edge which caused the vehicle to oversteer. The “panic” of which the appellant gave evidence came after this. He said that as he swerved back to the right, he noticed a ditch, so he corrected the vehicle to the left and kept accelerating. He said he steered back to the left “quite sharply because at that stage I was panicking” (emphasis added).

12 In my opinion, therefore, the negligence occurred, or at least commenced, earlier than the time found by the trial judge. In my opinion, in accelerating as he did at that time, the appellant drove the vehicle carelessly in a way which was “over and above what could be attributed merely to inexperience”: see Cook v Cook at 389. He knew that he should not accelerate out of a problem and he also appreciated that it was commonsense not to accelerate. There was no danger of hitting anything when the appellant moved to the left which required moving the vehicle quickly. There was no other immediate danger that was confronting the appellant.

13 Basten JA has found that the negligence commenced at an even earlier point of time. I do not consider that view to be wrong. Indeed, the differences in the finding as to negligence to be found in the decision of the trial judge and that of Basten JA and my own, may well demonstrate that the appellant’s actions should be viewed in their totality from the time that the appellant first saw the rubble on the road. On that basis, accepting that the negligence occurred as Basten JA finds, I also agree with his Honour’s reasons that the appellant’s initial manoeuvre in moving too far to the left, fell within the field of basic driving skills that the appellant executed carelessly, so as to make him liable in negligence to the respondent.

14 The approach which I have taken is slightly different from the finding of the trial judge. For that reason, it is open to review his Honour’s assessment of contributory negligence. In doing so, I approach the matter on the basis that the assessment of contributory negligence is an evaluative exercise upon which minds may differ and in respect of which an appellate court should exercise care before interfering with an assessment made by a trial judge. See generally: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34. In Podrebersek the High Court explained what was involved in the task of assessing contributory negligence, at 494, in these terms:

Pennington v Norris

Stapley v Gy0psum Mines Ltd.

Smith v McIntyre

Broadhurst v Millman

15 In my opinion, it was incumbent upon the respondent to provide adequate instruction to the appellant in relation to the care he needed to take, having regard to the conditions in which he was driving. Those instruction should have included an instruction not to accelerate out of a problem. The vehicle was being driven on a gravel road which had sandy edges and corrugations. It was foreseeable that conditions or circumstances would be encountered which might take an inexperienced driver by surprise or in respect of which an inexperienced driver may not have had the full complement of driving skills to competently deal with. Such instruction, if given, would have been a reinforcement of what the appellant already knew. Nonetheless, a young learner driver, driving in difficult and strange conditions, would, in the normal course, have needed such a matter to be reinforced, so that it would be at the forefront of his mind should an occasion of difficulty arise, as it did here. In those circumstances, I am of the opinion that it should have been found that the appellant and respondent were equally culpable, so that his Honour should have assessed contributory negligence at fifty per cent.

16 TOBIAS JA: In this matter I have had the benefit of reading in draft the judgments of Beazley and Basten JJA. Each of their Honours has rejected the challenge by the first appellant (the defendant) to the primary judge’s finding that he had breached his duty of care to the respondent (the plaintiff). However, each has approached that question slightly differently.

17 With some regret, I would uphold the defendant’s challenge to the primary judge’s finding of liability. I would therefore have allowed the defendant’s appeal, set aside the primary judge’s orders and, in lieu, ordered that the plaintiff’s proceedings against the defendant be dismissed with costs. However, as I am in the minority on the issue of liability, it is unnecessary to propose formal orders.

18 In [55] of his judgment, Basten JA has conveniently set out the issues calling for determination on the appeal. As to the first issue, the primary judge’s finding on liability, I agree with Basten JA with respect to sub-issues (a) and (b) but disagree with him and Beazley JA on sub-issue (c). I also agree with his Honour with respect to the various issues raised with respect to the primary judge’s assessment of damages. As to the issue of contributory negligence I agree with Basten JA’s resolution of sub-issue (a).

19 Unfortunately, Beazley and Basten JJA disagree with respect to sub-issue (b) although both accept that the primary judge’s assessment of the plaintiff’s contributory negligence at 30% was erroneous. Basten JA has therefore concluded that the plaintiff should bear two thirds of the responsibility for the accident whereas Beazley JA has concluded that he should bear 50% of that responsibility.

20 Notwithstanding that I am of the opinion that there should be judgment for the defendant on the issue of liability, the fact that I am in the minority requires me, in accordance with recent authority, to determine whether I agree with Beazley JA or Basten JA as to the proportion of responsibility which the plaintiff should bear as a consequence of his contributory negligence. However, before doing so, I should state my reasons for concluding that there was no breach by the defendant of his duty of care to the plaintiff.

21 The facts relevant to the issue of liability have, as Beazley JA acknowledges, been extensively set out in Basten JA’s judgment. It was generally common ground that the standard of care (there being no issue that the defendant owed the plaintiff a duty of care) owed by the defendant to the plaintiff was, in the exceptional circumstances of the present case, that articulated by the High Court in Cook v Cook (1986) 162 CLR 376. The relevant principles established by that decision are set out in [67] and [68] of Basten JA’s judgment. His Honour expounds the reasons for the plaintiff’s success in that case in [71] and [72] of his judgment.

22 As Basten JA observes (at [69] and [70]), the decision in Cook has not escaped academic criticism. It has also been the subject of adverse (albeit muted) judicial comment. Thus in Radford v Ward (1990) Aust. Tort Reports ¶81-064, Murphy J, sitting in the Full Court of the Supreme Court of Victoria, observed (at 68,350):

”I would be loath to accept the proposition that – simply because in any particular case the driver of a motor vehicle may be known by a would-be passenger to be less skilled, experienced or capable than the norm – in accepting gratuitously a lift, the passenger is owed a lesser standard of care than that owed by the hypothetical reasonable driver. Such a proposition would, I think, introduce chaos into the law of negligence generally.”

23 After citing passages from the joint judgment in Cook at 383 and 387 which asserted that special and exceptional facts or circumstances may transform the relationship between a particular driver and a particular passenger into a special or different class or category of relationship which either expanded or confined the standard of skill or care which was to be reasonably expected of a driver in that special class or category, Murphy J further observed (at 68,352):

Cook v Cook

From a practical point of view, the measurement of the degree to which the driver was seen to be so affected, and the parameters of the standard of care none the less appertaining in the circumstances, as well as the difficulties of an objective judgment whether or not the conduct causing the accident in the circumstances breached that lesser standard, would appear to me to introduce an air of complete unreality that should be avoided in this branch of the law.”

24 In the joint judgment in Cook at 388 their Honours had said that

”the appellant’s known incompetence and inexperience as a driver was a controlling element of the relationship of proximity between the parties.”

Joslyn v Berryman

Cook

Cook v Cook

Gala v Preston

Cook

Gala

Cook

Joyce

Roggenkamp

Cook

Gala

Cook

Gala

25 In applying the principles in Cook to the facts of the present case, Basten JA observes (at [79]) that in Cook the acceleration required to pass between the parked vehicle and the fence, combined with the failure of the defendant in that case to see the stobie pole, was understandably described as more than, and separate from, carelessness resulting from inexperience.

26 In the present case however, his Honour observes that it was the acceleration combined with over-correction of the steering that caused the vehicle being driven by the defendant to roll. I agree with his Honour that over-steering would appear to be a typical reaction due to inexperience which places the present matter in a different category to the failure of the defendant in Cook to see the stobie pole in front of her vehicle. I would also agree with Basten JA's observations (at [79]) that

“these factors are inconsistent with a conclusion that the deliberate acceleration which immediately led to the vehicle rolling, was caused by some superimposed or independent negligent conduct, over and above that which resulted from the inexperience of the driver. Rather, the defendant’s evidence as to his panic, after the vehicle swerved across the road to the right, is the kind of response which was reasonably to be expected from a driver with that level of experience, as known to the plaintiff. It would not constitute a breach of the relevant standard of care owed by the defendant specifically to the plaintiff.”

27 Nevertheless Basten JA considers that in other aspects of the defendant’s driving there was carelessness beyond that associated with inexperience. Relevantly, his Honour concluded (at [81]) that although there was no basis to infer negligence on the defendant’s part in taking what may have been seen as a cautious approach and steering to avoid the debris on the carriageway, the same could not be said of his failure to keep the vehicle on the carriageway. In particular, the fact that the near-side wheels left the carriageway demonstrated a lack of reasonable care. According to his Honour, that may have happened either because the defendant did not steer to the left until he was some 30m from the tyre debris or simply because he steered too far to the left and then failed adequately to correct the course of the vehicle.

28 Having so concluded, his Honour nevertheless acknowledges (at [83]), and I agree, that it could be said that the defendant’s initial swing to the left allowing the near-side wheels to leave the carriageway was the act of an inexperienced driver. However, he then says that

“some weight must be given to the evidence that on three previous occasions [the defendant] had demonstrated that he could exercise basic driving skills on unsealed roads without much by way of instruction. The initial manoeuvre fell, in my view, within the field of basic driving skills; but it was executed carelessly. It therefore constituted careless driving for which the defendant should properly have been held liable."

29 Accordingly, his Honour found the negligence for which the defendant should be held liable was that which involved his veering off the road to the left when seeking to avoid the tyre debris and in so doing failing to keep the vehicle on the carriageway. That was not the manoeuvre of a driver with only the limited skills and experience of the defendant. However, the acceleration and over-steering by the defendant which occurred when the vehicle had swung across towards a ditch on the right-hand side of the road and his further acceleration and over-steering of the vehicle to the left in order to avoid the ditch did not breach the standard of care of such a driver.

30 It is to be noted that when dealing with the issue of contributory negligence, his Honour (at [108]) observed that when the defendant veered off to the left-hand side of the road upon seeing the tyre debris, a clear instruction from the plaintiff not to accelerate in such circumstances and to steer gently back onto the carriageway would have avoided the disaster which ensued - that being the kind of instruction which an inexperienced driver such as the defendant should have received. I agree. But in my opinion the initial manoeuvre, as his Honour refers to it, of the defendant in veering left to avoid the tyre debris and thus allowing the near-side wheels of the vehicle to leave the carriageway coupled with his perception that he had thereupon lost traction because of the soft road shoulder thus causing him to panic and accelerate was, as his Honour also acknowledges, the act of an inexperienced driver.

31 It is true that on three previous occasions the defendant had driven the vehicle on unsealed roads for relatively short periods of time without mishap. However, with respect, I do not see how that fact could have endowed him with sufficient skills as to outweigh his general inexperience in driving on outback roads. In essence, Basten JA’s finding is that so far as the defendant’s ability to avoid the tyre debris in the middle of the road was concerned, he should not be regarded as being inexperienced. However, in my respectful view the initial manoeuvre that the defendant undertook – to veer suddenly to the left permitting his near-side wheels to leave the carriageway – was precisely the type of reaction to a perceived obstruction in the road one would expect to be borne out of inexperience. I see no relevant distinction between the defendant’s over-steering to the left to avoid the debris, thereby allowing his near-side wheels to leave the carriageway and the reaction to his erroneous perception that his wheels had lost traction by accelerating and thereby causing the vehicle to oversteer to the right.

32 Accordingly, although I agree with Basten JA that the defendant’s initial manoeuvre was executed carelessly, I cannot agree that his previous very limited driving experience on unsealed outback roads without apparent instruction was sufficient to take him outside the category of an unskilled and inexperienced driver in his execution of that manoeuvre. This being so, and there being, therefore, no independent or superimposed negligence in the Cook sense, the relevant standard of skill and care to which the defendant was required to conform for the benefit of the plaintiff when executing the initial manoeuvre was only that of an unqualified and inexperienced driver.

33 Beazley JA, as she indicates in [2] of her judgment, has taken a slightly different approach to that of Basten JA. Her Honour concludes (at [12]) that in accelerating as he did when he sought to correct the vehicle as it swerved back to the right hand side of the carriageway towards the ditch, the defendant drove the vehicle carelessly in a manner which was over and above what could be attributed merely to inexperience. This was because he knew, having been told by his grandmother who had taken him driving in the sandhills of Kurnell, never to accelerate out of a problem.

34 However, in my respectful opinion the fact that the defendant had been so informed by his grandmother was not capable of trumping his clear inexperience when driving on unsealed roads which, as her Honour notes in [9], comprised a total of approximately 2½ hours in what she referred to as “the unusual and challenging circumstances of outback Australia”. Her Honour also relied upon the defendant’s evidence that having driven into the soft edge of the road “the vehicle reacted … in a more radical or quicker way than I expected” and that it was only after he accelerated out of the soft edge thereby causing the vehicle to oversteer to the right that he panicked.

35 The relevant part of the defendant’s evidence is contained in the following exchange:

“Q. How far from the shredded tyre debris were you when you first noticed it?

A. I’d say approximately 50 metres.

Q. What did you do then?

A. As soon as I noticed the debris, I was not in the centre of the road but slightly off to the right on the left-hand side of that road. As soon as I noticed the debris, I corrected the vehicle.

Q. When you say you corrected it, what did you actually do in terms of speed, direction or anything else?

A. Okay when I noticed the debris, I had about roughly 2 seconds before it was actually next to the vehicle. I’d say I reacted when that piece of debris was approximately 30 metres from the vehicle by steering the vehicle to the left of the road.

Q. How far left did you go?

A. I went off to the left-hand side of the road. There was – you couldn’t see it, but there was sand that blended in with the sides of the road. Then the vehicle, I could feel the vehicle react by digging into the sand. By this stage the vehicle was past the debris. When I noticed that the vehicle sort of sunk into the sand, I again tried to correct the vehicle by steering off to the right to get out of it.

Q. How sharply or otherwise did you steer to the right to try to get out of the sand?

A. The problem being because I wasn’t expecting the vehicle to react when it dug into the sand, I accelerated when I felt the vehicle dig into the sand and swerved the vehicle to the right.

Q. What path did the vehicle then follow?

I think at that stage because I’ve panicked, I’ve accelerated the vehicle. It swerved off to the right like I said

Q. How hard did you steer back to the left when you saw the ditch on the right-hand side of the road approaching?

because at that stage I was panicking because the vehicle actually swerved

so I’ve panicked, accelerated the vehicle and turned the car to correct it

36 It is apparent from this evidence that panic had set in from the moment the near-side wheels of the vehicle dug into the sand (as the defendant then understood had occurred) and that his acceleration, which caused the vehicle to swerve to the right, was borne of that panic which continued as he saw the ditch in front of him on the right hand side whereupon he accelerated again, causing the car to oversteer to the left and ultimately roll. All this would have occurred in a few seconds.

37 Accordingly, given Beazley JA’s approach, in my respectful view the whole of the defendant’s reaction from the time he unexpectedly perceived the near wheels of the vehicle digging into the sand to the left of the carriageway up to and including his acceleration of the vehicle whilst turning to the left immediately before it rolled, was borne not only out of inexperience but also out of panic. Of course, being in an unexpected situation in respect of which he had had no prior experience, it is unsurprising that that inexperience caused him to panic and over-react in the manner in which he did.

38 Accordingly, I am unable to agree with Beazley JA that the defendant’s initial acceleration after his near-side wheels left the carriageway constituted the careless driving of the vehicle in a manner which was over and above what could be attributed to his inexperience. As I have indicated, in my opinion the fact that some time previously he had been told by his grandmother never to accelerate out of a problem would, understandably, have been overcome by his state of panic upon perceiving that his near-side wheels had dug into the soft shoulder of the carriageway causing him to react by accelerating.

39 The primary judge found liability on a slightly different basis to both Beazley and Basten JJA. At [48] and [49] of his judgment, his Honour found that in accelerating as he did in conjunction with his steering sharply back towards the centre of the road from its southern (left hand) edge, the defendant behaved with carelessness over and above what could be attributed merely to inexperience. Further, just as the deliberate acceleration in Cook introduced an element of carelessness over and above what could be so attributed, so too was the defendant’s deliberate acceleration in the present case.

40 It is true that in Cook the High Court considered that the driver’s “extraordinary action” in accelerating because she thought she would hit the parked car if she “didn’t put speed on”, was held to constitute an element of carelessness over and above what could be attributed merely to inexperience. It was accepted that her act of deliberate acceleration was the cause of the accident. It seems that their Honours considered that the absence of any suggestion of skidding was also relevant to that finding. Their Honours made it clear that having seen the need to avoid the parked car, the defendant’s deliberate acceleration was not to be regarded as the result of her inexperience.

41 On the other hand, in the present case the defendant perceived the need to extract the near-side wheels of his vehicle out of the soft sand, reacting to that perception by deliberately accelerating. I would not regard such a reaction as “extraordinary” (as it was so held to be in Cook) in the circumstances of the present case because the act of acceleration, whether deliberate or accidental, was borne of panic out of inexperience.

42 Accordingly, being true to the binding authority of the reasoning in Cook, for the foregoing reasons I am unable to agree with either the primary judge, Beazley JA or Basten JA that the defendant was in breach of his duty of care to the plaintiff. It is for those reasons that I would uphold the appellant’s challenge to the primary judge’s finding of liability against him.

43 The position, therefore, is that I am in a minority on the issue of liability but my colleagues differ as to the extent to which the plaintiff should be held guilty of contributory negligence. As I have indicated, the primary judge assessed the plaintiff’s share of responsibility at 30%, Basten JA at 66% or two thirds and Beazley JA at 50%. As no view commands a majority, it is therefore unfortunately up to me.

44 This vexed problem recently arose before this Court in Skulander v Willoughby City Council (2007) NSWCA 116. In that case the judgments circulated in draft revealed a majority of the Court (also Beazley JA and Basten JA) finding negligence proved with firm disagreement between their Honours as to the discount for contributory negligence. Mason P was of the view that negligence had not been proved. Nevertheless, his Honour was faced with the vexed question as to the disposition of the appeal in the same circumstances as I find myself in the present case.

45 With the concurrence of the whole Court in that case, the President canvassed the relevant issues including the theoretically available options available to him as the dissenting member of the Court: see at [45]-[74]. I acknowledge the wisdom of his Honour’s discussion of the problem and would specifically refer to his observations (at [75]) that

“[t]he factors that embolden me to take the matter beyond my preferred conclusion that the appeal should be dismissed with costs are: my acknowledgement that in this, as in all matters, I may be wrong; my respect for the views of my colleagues; and the fact that it was common ground in the appeal that if negligence was found, there would have to be some reduction of damages for contributory negligence.”

46 Accordingly, I am required to address the question of contributory negligence on the assumption that my conclusion as to breach of duty is wrong (as the majority would hold). The mental difficulty in doing so is articulated by Mason P in Skulander at [71]. Nevertheless, it is necessary to proceed on that basis notwithstanding the difficulties involved. Furthermore, it is necessary to do so with a view, if possible, to agreeing with one of my colleagues rather than proposing a third, or more accurately a fourth, percentage by way of deduction for the plaintiff’s contributory negligence.

47 I have carefully considered the reasoning of both my colleagues noting that the difference between them is not substantial: 50% against 66%. Both of their Honours have found that it was the absence of instruction from the plaintiff in the technique of bringing the vehicle safely back onto the carriageway that significantly contributed to the accident. At the end of the day, my own reasoning on the issue of contributory negligence is closer to that of Basten JA than Beazley JA. Had the plaintiff instructed the defendant on approaching the tyre debris to simply drive over it or, if he intended to go around it, to ensure he kept his near-side wheels off the road shoulder, the accident would have been avoided. I also agree with Basten JA at [108]) that it would have been avoided if the plaintiff had instructed the defendant when his near-side wheels left the carriageway to steer gently back onto the hard road surface and not to accelerate. This being so, the greater proportion of responsibility for the accident falls on the plaintiff rather than the defendant. For that reason I cannot accept that they were equally culpable.

48 Accordingly, for the foregoing reasons I agree with Basten JA that the plaintiff’s contributory negligence should be assessed at two thirds.

49 BASTEN JA: On 3 April 2002, Mr Paul Imbree (“the plaintiff”) was seriously injured when the four-wheel drive vehicle in which he was travelling rolled whilst it was travelling along Larapinta Drive (part of the Mereenie Loop Road), west of Alice Springs in the Northern Territory. At the time of the accident, the travellers in the vehicle included the plaintiff and his two sons, a friend, Mr Ben Watson and a sixteen year old, Jesse McNeilly, who was a friend of a son of the plaintiff. It was Jesse McNeilly (“the defendant”) who was driving at the time of the accident. The defendant lost control of the vehicle on the gravel surface of Larapinta Drive. At the time of the accident he had no driving licence and had limited experience driving on gravel roads. No other vehicle was involved in the accident.

50 The plaintiff at that time worked for Qantas Airways Ltd and the vehicle was owned by Qantas. Proceedings were brought by the plaintiff in the Supreme Court against both the defendant and Qantas Airways. Apart from the fact that it owned the vehicle and appeared to have provided it to the plaintiff as part of his remuneration package, it had no involvement in the accident. No specific defence was run on behalf of Qantas and it appears to have been assumed at all stages that if the defendant was liable judgment could also be entered against Qantas on the basis of its vicarious liability. The correctness of that conclusion was not in issue and, for present purposes, it is convenient to refer to Mr McNeilly as the defendant. (He was referred to by the trial judge, Studdert J, as “the first defendant”.)

51 It was also 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: different terms were adopted at different stages. However, the plaintiff’s evidence was that he did not give any material instructions to the defendant in relation to his driving.

52 As a result of his injuries, the plaintiff suffers from tetraplegia. The trial judge upheld his claim against the defendant in negligence and assessed his damages in an amount a little over $11 million. He assessed contributory negligence on the part of the plaintiff at 30% and, apparently by agreement, a judgment was given in an amount of $7,780,703, in reduction of which the defendant was given credit for payments by the insurer of $2,614,557: see Imbree v McNeilly [2006] NSWSC 680.

53 The defendant appeals in relation to the finding of liability, the calculation of contributory negligence and various items of loss included in the assessment of damages.

54 The plaintiff, in his cross-appeal, has contended, in effect, that liability should be upheld, but on a different basis to that found in the reasoning of the trial judge which, he concedes, would require a departure from High Court authority which is a course not available in this Court. He also contends that the finding of contributory negligence should not have been made, that damages should have been assessed by reference to common law principles, rather than under the Motor Accident Compensation Act (NT) (“the Territory Compensation Act”) and complains in respect of two items of loss which he failed to recover.

55 The issues which arise may be identified as follows:

(a) was the duty excluded because the plaintiff and the defendant were engaged on a common course of illegal activity?

(b) was the duty abrogated by a voluntary assumption of risk by the plaintiff?

(c) was there a breach of the duty of care as between the defendant (an inexperienced driver) and the plaintiff (his instructor)?

(a) should the defendant have been allowed to rely upon a failure by the plaintiff to give instructions to the defendant, a matter which was not expressly pleaded in his defence?

(b) was the assessment of contributory negligence either too high (the plaintiff sought a nil assessment) or too low (the defendant sought an assessment of not less than 70%)?

(a) was the trial judge correct in applying the provisions of the Territory Compensation Act?

(b) did the trial judge correctly assess the life expectancy of the plaintiff?

(c) was the plaintiff entitled to an award for past gratuitous domestic assistance, during the period when he had 24-hour professional care?

(d) (on the cross-claim) should the plaintiff have been awarded an amount on account of gratuitous domestic assistance for the future, in circumstances which did not differ from the past?

(e) was the plaintiff entitled to the cost of an “environmental control unit” (worth $300,000), again in circumstances where he had 24-hour professional care?

(f) should the plaintiff have obtained an amount for the cost of a “case manager” in circumstances where he enjoyed 24-hour a day professional care?

(g) (also on the cross-claim) was the trial judge correct in deducting an amount of $500,000 from the cost of the new house necessitated by his physical disabilities?

56 It is convenient to address each of these issues in turn, dealing with so much of the evidence as is relevant to the specific issue, as it arises.

Liability: joint illegal enterprise

57 There may be cases in which the fact that a plaintiff and a defendant are engaged in a joint criminal enterprise will prevent one recovering in negligence for the careless act of the other. However, it is clear that the circumstances in which such conduct will provide the defendant with a complete defence are quite limited. They are not helpfully identified by the expression “engagement in a joint illegal enterprise”. For example, the circumstances may range from a case of an armed robbery where one co-offender accidentally shoots the other, to a case in which a person is injured whilst leaning out of the window of a tramcar, in breach of a regulation. Such examples were discussed by Kitto J in Smith v Jenkins (1970) 119 CLR 397 at 401-402. However, where, as in the present case, the illegality consists of a breach of a statutory provision “the true inquiry is whether it is the intention of the statute penalizing the particular conduct to affect civil responsibility”: Henwood v The Municipal Tramway Trust (South Australia) (1938) 60 CLR 438 at 467 (Dixon and McTiernan JJ). In Smith v Jenkins, after referring to Henwood, Windeyer J stated at p 416:

“If a plaintiff’s own conduct was a contravention of a law designed to ensure that he, and others similarly situated, would be safe from danger, and if this conduct was a factor in producing his injury, he may be found guilty of contributory negligence or of being the author of his own misfortune. That however is very different from saying that, simply because a man was a wrongdoer, he can have no remedy at law for harm done him. That proposition cannot possibly be sustained.”

58 Henwood was applied by Sheppard J in Matthews v McCullock of Australia Pty Ltd [1973] 2 NSWLR 331 at 335-336. In Matthews, the plaintiff was a motorcycle rider, who had been disqualified and was, accordingly, unlicensed. He suffered injury when hit from behind, while stopped at traffic lights, by a car owned by the defendant. His Honour held that the plaintiff was not precluded from recovery, by reason of the statutory scheme for licensing and disqualification of drivers: the case was not, of course, one involving any relationship between plaintiff and defendant which allowed the plaintiff to know of the defendant’s status.

59 The defendant in the present case was old enough to obtain a learner’s permit, which would have permitted him to drive the vehicle with a qualified driver, such as the plaintiff. He did not have one, although shortly before the start of the trip he had tried, but failed, the written test required to obtain the permit. He did not require driving experience or training in order to obtain the permit nor, in particular, any experience on gravel roads. Thus, the causal connection between the breach of the law and the accident was quite limited. Although the defendant tried to make some mileage from the concession by the plaintiff that he allowed the defendant to drive on a gravel road, rather than a bitumen road, because the chances of discovery by the police were less, that fact takes the matter no further in terms of the principle underlying the defence of illegality, however that may be expressed.

60 No attempt was made to derive from any statutory provisions an underlying purpose or policy which might suggest that a person in charge of a vehicle should in all circumstances be deprived of a civil claim in damages which might otherwise be available to him as a result of the negligence of the driver. Indeed, no real attempt was made to identify any particular statutory provision as relevant to this case. However, it may be noted that Part III of the Territory Compensation Act provides a scheme for payment of benefits, on a no-fault basis, to the victims of motor accidents in the Territory, at least in relation to a person who was a resident of the Territory at the time of the accident. Pursuant to s 9(1)(d) of that Act, an unlicensed driver was deprived of entitlement to a benefit under ss 13 and 17, which provided for compensation for loss of earning capacity and compensation for impairment respectively. A non-resident of the Territory at the time of the accident is not entitled to such benefits (s 7) and was therefore not subject to the exception. As will be seen below, and by way of contrast, a non-resident was entitled to claim damages subject to express limitations of which the exception referred to above was not one.

61 The importance of close attention to the relevant statutory scheme, in circumstances where a liability or immunity is said to flow from a failure to comply with the scheme can hardly be over-emphasised. Yet the present defence was said to arise as a matter of common law principle, without clear identification as to whether it was New South Wales or Northern Territory law which was relevant. His Honour did not accept this defence to liability. The challenge to his Honour’s findings should be rejected.

Voluntary assumption of risk

62 The second basis upon which a complete defence was said to arise was that commonly identified by the Latin phrase volenti non fit injuria. The doctrine of voluntary assumption of risk is frequently sourced, in this country, to TheInsurance Commissioner v Joyce (1948) 77 CLR 39, where three members of the Court (Latham CJ, Rich J and Dixon J) expressed somewhat different views as the nature and effect of the defence. As Dixon J noted, there was authority for treating some cases which seem to fall within such a defence as cases of contributory negligence, which was itself, until the Law Reform (Contributory Negligence) Act 1945 (UK) and its legislative progeny, generally a complete defence in Australia and the UK: see discussion in Joyce at p 46 (Latham CJ) and p 58 (Dixon J).

63 However, as Joyce illustrates, the volenti principle can also be treated as one in which the standard of care is reduced by the special relationship between the plaintiff and the defendant, to a point where it either ceases to exist or cannot readily be breached. Considered in this light, the voluntary assumption of risk was not a defence, but rather resulted in a reduction in the standard of care. This was the approach adopted by the High Court in Cook v Cook (1986) 162 CLR 376, which was applied by the trial judge in this case. Cook did not involve intoxication, as Joyce did. As will be seen below, the circumstances of Cook were similar to those in the present case and are not consistent with the operation of an absolute defence of volenti in such circumstances. Accordingly, in this case the plaintiff’s claim must be assessed on the basis of the appropriate standard of care to be applied in the case of an inexperienced driver and his instructor or supervisor; and, where the instructor himself had a role to play both in the decision to allow the defendant to drive and in the supervision of his driving, the instructor’s own conduct may be relevant to the apportionment of responsibility for the accident. Of course, no question of contributory negligence will arise unless the conduct of the defendant was a breach of the standard of care required of him in the circumstances.

64 The trial judge was not in error in rejecting the defence of volenti.

No duty of care

65 The defendant also sought to escape liability on the basis that, despite the relationship between passenger and driver, there was no duty of care in the circumstances of the case. Again, that approach would appear to be inconsistent with the approach adopted in Cook v Cook, discussed below. The basis for the argument was said to be the decision of this Court in Cusack v Stayt [2000] NSWCA 242, (2000) 31 MVR 517. However, the facts of that case bear no relationship to the present. They were described by Heydon JA in the following terms (at [19] and [20]):

“At the time when the plaintiff was struck by the defendant’s car the plaintiff had been guilty of assaulting the defendant, battering her and inflicting malicious damage to property in which she was sitting. There was no reason to suppose that he would not inflict further violence on her.

The defendant was intoxicated and had used marijuana, as the plaintiff well knew … . The plaintiff thus knew before the defendant reached her vehicle that she was not fit to drive it, and that if she did there was a risk to her safety and the safety of others … .”

66 In those circumstances, his Honour described the relevant principles in the following terms at [25]:

“None of the general principles commonly used in identifying the existence of a duty of care in relatively normal circumstances apply here. There was no special relationship between the parties or between the defendant and anyone else giving rise to any assumption of responsibility by the defendant for the plaintiff’s safety. Their quarrelling had gone well beyond any stage when there was any consensual understanding between them about anything. There was no peculiar vulnerability in the plaintiff, rather it was the defendant who was vulnerable to the plaintiff’s campaign of threats and violence. There was no actual reliance, and there could have been no reasonable reliance, by the plaintiff on the defendant to avoid injuring him. Indeed, he invited her to do so. While a sober driver in the defendant’s position who had not been upset by the plaintiff might be said to be in a position of control, the defendant in her intoxicated and terrified condition was to the plaintiff’s knowledge not in a position of control.”

Standard of care and breach

67 Once it is accepted, as it should be, that the relationship between the plaintiff and the defendant did give rise to a duty of care, the next question is whether the defendant’s conduct contravened the standard of care expected of him in the circumstances. According to the plaintiff, that standard is an objective one and operates uniformly with respect to drivers of motor vehicles. However, he acknowledged that a different approach is required in the present circumstances by the decision of the High Court in Cook v Cook, a case involving a claim by a passenger against a totally inexperienced driver. The joint judgment (of Mason, Wilson, Deane and Dawson JJ) identified the general rule (at p 383):

“In that general category of case, the standard of care required, being objective and impersonal, is not modified or extended by the personal driving history, ability or idiosyncrasy of the particular driver. It is the degree of care and skill which could reasonably be expected of an experienced and competent driver.”

68 However, their Honours noted that the particular circumstances of the relationship between the plaintiff and defendant, particularly in the case of a professional driving instructor and the pupil having his or her first driving experience, could lead to a different approach. Their Honours stated:

“It would be contrary to common sense and the concept of what is reasonable in the circumstances (considerations which are basic to the common law of negligence) to measure the content of the duty of each of such an instructor and such a pupil by the standard to be expected of the ordinary experienced, skilled and careful driver, with the result that the degree of skill required of each of them towards the other was the same.”

“In relation to other users of the highway, the duty of care of both instructor and pupil will ordinarily fall to be measured by the same objective standard since the relevant relationship will be the ordinary one between a driver and another user of the highway. As between themselves, however, it would be to state a half-truth to say that the relationship was, if the pupil was driving, that of driver and passenger. … In such a case, the standard of care which arises from the relationship of pupil and instructor is that which is reasonably to be expected of an unqualified and inexperienced driver in the circumstances in which the pupil is placed. The standard of care remains an objective one. It is, however, adjusted to fit the special relationship under which it arises.”

69 The defendant noted that this approach had been the subject of critical academic comment, particularly by Professor John Fleming in The Law of Torts (9th ed, 1998) at p 341 where the author stated:

“Knowledge by the passenger may go to show contributory negligence and thus reduce his damages, but does not take away the duty of care nor diminish the standard of care demanded from all drivers alike.

The High Court of Australia, on the other hand, refused to budge from its previous position that a driver’s known incompetence and inexperience controlled his relationship with the passenger and that the duty thus modified defined the degree of care to be expected.”

Cook v Cook

70 Trindade, Cane and Lunney, in The Law of Torts in Australia (4th ed, OUP, 2007) at p 444, also note an objection to “the whole approach in Cook v Cook involving variable standards of care based on a person’s knowledge of the defendant’s lack of skill and experience”. The authors argue that a fairer approach would be to rely upon contributory negligence to reduce the plaintiff’s damages, in an appropriate case, or to rely upon the doctrine based on voluntary assumption of risk. The authors’ preference for the latter approach is that “the variable standard of care approach is more likely to work against plaintiffs than other applicable doctrines”: p 445. On the other hand, Professor Fleming, in a statement not contradicted by the defendant in the present case noted that there was, when he wrote, “no modern reported case” in which a plaintiff had been completely barred (whether on a theory of reduced standard of care or voluntary assumption of risk), instead of merely having his damages reduced for contributory negligence: p 341-342.

71 It is important to note why the plaintiff was not entirely unsuccessful in Cook v Cook. In that case, the defendant driver had misjudged the corner, when instructed to make a left-hand turn and had found herself heading for a parked car. Her evidence, as set out by the High Court at p 389, described what happened next in the following terms:

“I thought I would hit it [ie the parked car] if I didn’t put speed on and go up between the car and the fence, so I concentrated on getting between the fence and the car that was parked, so I put my foot on the accelerator because I was going fairly slow, and I didn’t see the stobie pole until we hit it. In fact I don’t remember a stobie pole until we hit it.”

72 In analysing this evidence, the joint judgment drew a distinction in the following terms (p 388):

“Actions which are fairly to be seen as the result of that inexperience and lack of qualification rather than as having been caused by superimposed or independent carelessness did not, of themselves, constitute a breach of the duty of care which the appellant owed to the respondent.”

“… [T]he appellant’s action in deliberately accelerating so as to avoid an object in the path of the vehicle she was driving involved, in the absence of any suggestion of skidding and in circumstances where she was deliberately steering the car off the roadway, an element of carelessness over and above what could be attributed merely to inexperience. It has not been disputed that that acceleration was a cause of the accident and was largely responsible for the severity of the impact when the vehicle came into contact with the stobie pole and the respondent was thrown against the windscreen. Any such superimposed carelessness on the part of the appellant constituted a breach of the duty of care which she owed to the respondent.”

73 The trial judge accepted that the principles in Cook v Cook were to be applied, but was nevertheless satisfied that a breach of duty occurred. There was no error in the statement of legal principle adopted by his Honour and it is convenient to turn to the application of those principles to the facts in the present case.

Application of principles: negligent conduct

74 The circumstances of the accident were largely common ground between the parties, at least on the appeal, and can be summarised briefly. Larapinta Drive, at the place where the accident occurred, was a straight and level stretch of gravel road. It was of ample width to allow two vehicles to pass without either leaving the compacted roadway. The surface was subject to corrugation, but the corrugations near the place of the accident, as shown in photographs tendered in evidence, appear not to have been of significant depth. The road dipped in parts where there were culverts, one of which was approximately 300 metres before the scene of the accident. There was a piece of a shredded tyre in the middle of the road at the scene of the accident. It was said by the plaintiff to be visible immediately the vehicle came out of the culvert, but the defendant said that he did not see it until about 50 metres before the vehicle reached it. What happened at that point is a matter of some importance, which will need to be addressed further. However, in broad terms, the defendant, who was driving (safely) in the middle of the road, at about 80 kph moved to the left to go past the tyre debris, rather than over it, but moved too far to the left so that the left-hand wheels of the vehicle were on the shoulder of the carriageway. The shoulder consisted of loose sand, gravel and dust and was undoubtedly softer than the roadway. However, it should not have created a difficulty for the driver, as long as he had steered the vehicle gently back onto the carriageway. Instead, the defendant accelerated, probably because he perceived (wrongly) a lack of traction and turned too far to the right. This manoeuvre took him across the road onto the right hand side, where he again over-steered and accelerated, with the result that the vehicle rolled onto its roof.

75 As the vehicle was travelling east, the right hand side of the road for the driver was the southern side. His Honour described the conduct which constituted a breach of duty in the following terms (at [48]):

“It seems to me that in accelerating as he did in conjunction with steering sharply back towards the centre of the road from the southern edge of it, the first defendant behaved with carelessness over and above what could be attributed merely to inexperience. I accept the first defendant’s evidence that he had been instructed by his grandmother in a lesson given to him before this accident that he should not attempt to accelerate out of a problem (T 284). The first defendant also agreed in cross examination (T 284) that common sense would have suggested that the thing to do was to take his foot off the accelerator.

Cook v Cook

76 Counsel for the defendant challenged this finding on the basis that his action of acceleration was not in any relevant sense “deliberate” and, like the overcorrection on the steering, was entirely a product of his inexperience. Counsel drew attention to the following passage in the defendant’s evidence, in relation to what happened after he steered to the right to get out of the soft shoulder on the left hand side of the road (Tcpt, p 271):

77 This passage was set out by the trial judge at [13]. At [37] his Honour continued:

“Why did this accident happen? I referred earlier to the first defendant’s account as to what happened. Essentially, I accept the first defendant’s account, although he was probably mistaken in his perception that the vehicle dug into the sand after he moved to the left to avoid the tyre debris. The perception as to what happened to the near side tyres is not borne out by consideration of the photographs in Exhibit 8. What seems to have been critical is what happened after the first defendant had gone to the edge on the right hand side of the roadway, and the sharp turn to the left from there and the continuing acceleration proved critical.”

78 His Honour then turned to the question of causation and referred to a lengthy passage in the evidence of a “consultant transport engineer”, Colin J Wingrove, called by the plaintiff. Mr Wingrove accepted a number of propositions relating to the additional skills required of a driver on gravel roads in the following terms (Tcpt 254-255):

79 There is force in the contention of counsel for the defendant, on this appeal, that his Honour’s reference to “deliberate acceleration” in Cook v Cook as equivalent to the “deliberate acceleration” of the defendant in the present case, ignores a number of pertinent points of difference. First, the circumstances of the two accidents were far apart. The accident in Cook v Cook occurred in a suburban street; the present accident occurred on a gravel road in the country. In Cook v Cook, the acceleration required to pass between a car and a fence, combined with the failure to see a stobie pole, may understandably be described as more than and separate from the carelessness of inexperience. By contrast, the defendant’s reaction in the present case, namely to accelerate when he felt his tyres lose traction in soft sand, was more readily to be perceived as a response based on inexperience. Secondly, the description, which his Honour accepted, given by the defendant, namely that he “panicked”, also suggests a close correspondence with the foreseeable reaction of an inexperienced driver. No such evidence appears to have been given by Ms Cook. Thirdly, it appears to have been the acceleration combined with over-correction of the steering, which caused the vehicle to roll in the present case. Over-steering would appear to be a typical reaction of inexperience, which again puts the matter in a different category to the failure to see a stobie pole in front of the vehicle, as in Cook v Cook. In my view, these factors are inconsistent with a conclusion that the deliberate acceleration which immediately led to the vehicle rolling, was caused by some superimposed or independent negligent conduct, over and above that which resulted from the inexperience of the driver. Rather, the defendant’s evidence as to his panic, after the vehicle swerved across the road to the right, is the kind of response which was reasonably to be expected from a driver with that level of experience, as known to the plaintiff. It would not constitute a breach of the relevant standard of care owed by the defendant specifically to the plaintiff.

131 There are two ways in which the plaintiff’s construction argument may be understood. The first is by treating the geographical limitation as rendering s 5 beyond the scope of a law which can be picked up and applied in any other circumstances. In this sense, the point is analogous to that which arises when a provision of the Judiciary Act picks up and applies State law in federal jurisdiction. Because a State or Territory has no constitutional power to legislate for the law applicable in a Federal court, the relevant State or Territory law must be understood as one having application only in a State court exercising State jurisdiction. But if that limitation is to be treated as universally applicable, it will contradict the intended operation of the Commonwealth law which seeks to pick it up. This is not a novel issue. For example, in John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 88, Gibbs J stated:

“It is also settled that s 79 does not give a new and more extensive meaning to State laws which it renders binding on a court exercising federal jurisdiction; it applies those laws with their meaning unchanged … . To that last proposition it is, however, necessary to add a qualification. Section 79 may render applicable in a court exercising federal jurisdiction a State statute which either by its express provisions or upon its proper construction is limited in its application to the courts of the State. ... If the laws of a State could not apply if, upon their true construction as State Acts, they related only to the courts of the State, it would seem impossible ever to find a State law relating to procedure, evidence or the competency of witnesses that could be rendered binding on courts exercising federal jurisdiction, because most, if not all, of such laws, upon their proper construction, would be intended to apply in courts exercising jurisdiction under State law.”

132 In Kruger v The Commonwealth (1997) 190 CLR 1, Gaudron J stated at 140:

Judiciary Act

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd

Solomons v District Court (NSW)

133 The alternative way of understanding the plaintiff’s submission is that s 5 incorporates a choice of law rule which is inconsistent with the general law. That approach seems to have underpinned a submission based on the proposition that, when first enacted, the Territory Legislative Assembly would have assumed that the relevant choice of law rule in relation to assessment of damages was the lex fori. Accepting the assumption, although it is not in terms borne out by the relevant second reading speech, the use of the term “in the Territory” is not properly understood as a choice of law rule at all, but an express indication that the Territory legislature was not presuming to legislate for proceedings in courts in other jurisdictions or “law areas”, to use the phrase adopted in John Pfeiffer.

134 The plaintiff’s submission would seem to be at odds with the fundamental principle that there is but one common law operating in Australia, albeit subject to statutory variation by a responsible legislature acting within power and that, as a consequence, a common general law choice of law principle will have the effect of maximising the likelihood that proceedings will be decided according to the same rules, regardless of the court in which they are commenced: see John Pfeiffer, 203 CLR 503 at [86] and [102]. For the Territory to enact a law in relation to accidents occurring in the Territory, but one which can only ever be applied in proceedings brought in a Territory court, despite the general choice of law rule, so that both Territory residents and non-residents suing in other law areas must recover damage in accordance with common law principles, is not a construction which should readily be adopted.

135 The plaintiff suggests that it would be unlikely, in practical terms, for a resident of the Territory to bring proceedings elsewhere. However, that is not so. Section 5(1)(a) refers to a resident of the Territory “at the time of the accident”. Such a person, who was injured in an accident in the Territory involving a South Australian car, but who went to live in Adelaide and commenced proceedings there within the limitation period, would not be an uncommon example.

136 There is a further indication in s 5 that it was not intended to change any general law choice of law principle. Thus, the closing words of s 5(1) indicate that its provisions operate only with respect to accidents which occur in the Territory. That kind of geographical limitation has a distinct and different juridical effect to that which seeks to limit the place in which an action is brought. There is no reason to conclude that s 5 is a provision which cannot, in its terms, be applied by a NSW court in assessing damages resulting from an accident which took place in the Territory, as required by common law choice of law rules operating in NSW.

137 The cross-appeal in this respect should be dismissed: Studdert J was correct to assess damages in accordance with s 5(1)(b) of the Territory Compensation Act.

Damages: life expectancy

138 The trial judge had before him differing opinions, including that of Dr Buckley, a specialist physician in rehabilitation medicine, who examined the plaintiff and expressed the view that, despite his injuries, he had a life expectation of 85% of the years that would normally remain. In formulating that opinion, Dr Buckley referred to Australian data published by Professor John Yeo, formerly of the Royal North Shore Hospital Spinal Injuries Unit, and others in a paper, “Mortality Following Spinal Cord Injury” published in Spinal Cord (1998) 36, 329-336. Professor Yeo and a team of researchers expressed the view that, on average, a person with the plaintiff’s level of disability would expect to achieve only 77% of normal life expectancy. Dr Buckley, however, considered that some further improvement may have resulted since Professor Yeo’s paper was published and that it was necessary to take into account particular circumstances relevant to the plaintiff which might suggest that he would have a longer than average life expectancy.

139 Professor Yeo’s paper was treated by Dr Buckley as authoritative. The paper concluded that “projections of life expectancy would yield, for example, results of 77% of the population life expectancy for those with complete tetraplegia”: p 335 (col 1). That figure took account of an implied “net rate of improvement” of 1.6% per annum in the population of people with spinal cord injury, presumably over the length of the study (which concluded in 1993), as well as subsequent years. It was not suggested that Dr Buckley was incorrect in making allowance for the fact that further improvement might have been achieved since that time. Nor could it properly be suggested that Dr Buckley was incorrect in taking into account his assessment of personal circumstances. The paper did not suggest otherwise; its conclusion stated:

“The results of this study provide a rational basis upon which life expectancy can be considered for each individual patient suffering from spinal cord injury in the present and near future.”

140 In addition, the paper stated (p 335):

“These statistics provide a framework within which life expectancy can be considered for each individual. However, care must be taken when applying projections for life expectancy for an individual from grouped data. In applying these estimates of life expectancy one must be careful not to discount expected improvements in survival of patients who have sustained spinal cord injury, compared to the general population.”

141 The complaint made by the defendant on the appeal was not that Dr Buckley’s evidence should have been rejected, but that his Honour did not accept Dr Buckley’s concession that Professor Yeo himself would probably have adopted his “usual approach” and simply quoted the 77% figure, as identified in the study. However, Dr Buckley gave reasons why he did not accept that “average” figure in this case. The trial judge set out his evidence and accepted it. The further criticism raised by the defendant is that plaintiff himself agreed that he had seen Professor Yeo, and that medical reports had been provided in relation to the plaintiff, which the plaintiff had not tendered. His Honour should, it was argued, have applied the rule in Jones v Dunkel to infer that Professor Yeo’s evidence would not assist the plaintiff.

142 One may indeed draw the suggested inference, but it does not greatly assist the defendant. When the reports were exchanged, which was of course prior to cross-examination, one might infer that Professor Yeo’s report would have indicated a level of life expectancy below the 85% figure adopted by Dr Buckley. Following cross-examination of Dr Buckley, one might infer that Professor Yeo’s report probably included the figure of 77%. In that sense, it did not “assist” the plaintiff. However, Dr Buckley was cross-examined on the basis that Professor Yeo would have adopted the lower figure and gave a coherent explanation as to why his own opinion was not to the same effect.

143 The trial judge was quite entitled to prefer the opinion of Dr Buckley, who had seen the plaintiff, to that of Dr Voss, called by the defendant, but who had not seen the plaintiff. He was also entitled to accept Dr Buckley’s explanation of his departure from Professor Yeo’s “usual” figure. No error has been demonstrated in approaching the question of damages based on a life expectancy of 85% of normal years.

Damages: gratuitous domestic assistance

144 A significant item of damages upon which the parties differed was the allowance for gratuitous domestic assistance. His Honour’s treatment of this topic was the subject of an appeal and cross-appeal. That followed from his Honour’s allowance of past gratuitous assistance for domestic care in an amount of $118,404 (plus interest) (at [204]) but his rejection of a similar claim for the future.

145 His Honour divided into two parts the claim for past gratuitous assistance, the first period being 91 weeks prior to 4 January 2004, when the plaintiff was finally able to go home. The second was for the period from 4 January 2004 until the date of trial. For the latter period, he allowed compensation for eight hours per week, at the rate of $33 per hour, which was agreed between the parties.

146 With respect to future gratuitous assistance, his Honour noted that paid care was to be allowed for a period of 26.5 hours per day (including, in effect, a two and a half hour overlap between carers) and also, discretely, for gardening and maintenance. This assessment invites attention to the number of hours of professional care provided from 4 January 2004 until the date of trial, and to the number of hours provided during that period for “gardening and maintenance”.

147 In relation to the allowance for professional carers, his Honour explained at [182] that:

“There is no issue but that the plaintiff requires attendant care twenty-four hours per day and two carers to help with personal care and to assist with transfers.”

“The present regime of care is that there is one carer around the clock and there is an overlap between the shifts of the carers for two hours in the morning and half an hour in the evening. That overlap makes provision for the plaintiff’s needs for personal care for showering and dressing and for going to the toilet and for attendant transfers.”

148 So far as maintenance was concerned, his Honour noted at [201] that the plaintiff’s father had done maintenance work around the home for one or two hours per week. Whether that included gardening or not is not clear from the judgment.

149 The parties did not assist the Court in relation to the question of gardening expenses. The plaintiff gave evidence of his father and mother assisting at home, but there did not appear to be any specific reference to gardening: Tcpt, pp 34-35. The plaintiff obtained reports from an occupational therapist, Glynis Flanagan. Ms Flanagan did refer to gardening costs (report, 26 June 2003, p 17), but expressed ignorance as to the existing gardening arrangements in her evidence: Tcpt, pp 150-151. However, on the basis of Ms Flanagan’s second report (at par 11.2) the plaintiff claimed in written submissions “gardening and maintenance” for an average of three hours per week calculated at $38.5 per hour, and his Honour made separate allowance for this item.

150 I would not interfere with his Honour’s findings in relation to past domestic assistance. Accepting that allowance should be made for the changes to which his Honour referred, it would appear that the eight hours per week allowed in the past should be reduced by three hours per week for the future, if consistency were to be the key and no changes in circumstances were identified which would justify a different approach. Those assumptions should be accepted. Thus, the claim for future gratuitous assistance should be based on five hours per week. On the basis of the plaintiff’s schedule of damages, that would appear to require an allowance of $26,854. The plaintiff did not trouble this Court with a calculation in support of his cross-claim, and the parties should have leave to provide an agreed figure if the figure proposed is incorrect.

Environmental control unit

151 The trial judge allowed as part of the damages $300,000 for the installation of an environmental control unit in the plaintiff’s home. The proposed equipment would presumably work on the same principle as that currently installed, which allows the plaintiff to open doors, change channels, adjust air conditioning and make other similar arrangements by a voice activated system of commands. The system in place at the date of trial apparently did not function properly.

152 The defendant’s objection to this particular item was based on the proposition that it allowed the plaintiff an ‘optimal’ level of control of his environment at significant expense and without demonstrable benefit to his physical or mental well being. It was not, therefore, reasonable in all the circumstances.

153 In support of this proposition the defendant called in aid the joint judgment of Gibbs and Stephen JJ in Sharman v Evans (1977) 138 CLR 563 at 573-574. Their Honours rejected as not reasonable a claim by a 20 year old woman, rendered quadriplegic in a motor accident, an amount which would have allowed her to live in her mother’s home, rather than spending the remainder of her life in hospital. Their Honours stated (at 574):

“The benefit to the plaintiff of being cared for at home rather than in hospital is not any benefit to her health but rather to her future enjoyment of life which would be enhanced by a home atmosphere; her life would not thereby be prolonged nor would her physical condition be at all improved; indeed she would be somewhat more at risk physically at home than in hospital. There is no evidence suggesting any likely psychiatric benefits, probable though these might appear to the layman.”

154 The defendant’s case on appeal was, in effect, that the plaintiff had been adequately and reasonably compensated for his injury by having a carer available around the clock and by numerous modifications to the house which made it accessible to a person in a wheel chair. On the other hand, the case for the plaintiff was that the carer had a number of other functions to attend to and would not be with the plaintiff, or available to him in the home, at all times to change a television channel, adjust the volume or undertake similar tasks which, with electronic assistance, the plaintiff could do himself. Indeed, it was argued that the “carers are not servants and are likely to become highly frustrated if called away from attending to other tasks merely to change a television channel”. The importance of a “stable long-term relationship” between the plaintiff and his carer was emphasised.

155 The defendant sought to rely on Sharman v Evans for a point of principle, rather than for a conclusion on the particular facts of this case. As appears from the judgment of Kneipp J in Wieben v Wain (1990) Aust Torts Rep ¶81-051 (QSC) it may be that some care should be taken in seeking to derive any broad principle from the statements in the judgments: at pp 68,188-68,189. Similarly, it is commonly accepted nowadays that significant benefits will flow to a person from modifications which would allow him or her to live at home, rather than in an institution: see, eg, Government Insurance Office (NSW) v Mackie (1990) Aust Torts Rep ¶81-053 (Clarke JA, with whom Mahoney and Handley JJA agreed: at p 68,211 (col 1)). Furthermore, the great advances in technological devices which can assist a severely injured person to improve his or her level of independence and the enjoyment of the amenities of life, may well be seen as a better form of compensation than a higher award of general damages flowing from a greater degree of pain and suffering. Finally, an assessment of what is reasonable in the circumstances of a particular case, may well involve some consideration of the significance of the expenditure, as a proportion of the likely overall award, as well as the difficult assessment of the relationship between the additional proposed cost and the anticipated benefit.

156 As with the next item to be considered, it is not irrelevant that the insurer, on behalf of the defendant, was willing to accept, before trial, the value of some form of electronic control device. Nor is it irrelevant that the actual cost of the proposed equipment was not challenged as unreasonable.

157 By referring to the insurer’s involvement in the provision of such equipment in the past, it is not intended to suggest (nor did the plaintiff seek to suggest) that there was some form of admission involved. The possibility that such conduct can give rise to an admission, in circumstances where it takes place pursuant to a statutory obligation to provide assistance which is “reasonably necessary”, as for example, pursuant to s 60AA of the Workers Compensation Act 1987 (NSW) need not be addressed in the present circumstances: c.f. Gordon v Ross [2006] NSWCA 157 at [127]-[136] and see State Rail Authority (NSW) v Brown [2006] NSWCA 220 at [85]. Furthermore, it was entirely open to the defendant’s insurer in this case to accept that a cheaper form of equipment might be tried but, when it proved unsatisfactory and the more expensive form was required, yet contend that the test of reasonableness was no longer satisfied in relation to the greater expense.

158 More importantly in the present circumstances, particular leeway must be given to the judgment of the trial judge in assessing the reasonableness of a particular item which constituted less than 3% of the likely total award, and formed part of a regime which involved other items of equipment, professional care and gratuitous domestic assistance. A duplication of benefits might demonstrate error, but that was not established in the present case. In all the circumstances, in my view no proper basis for intervention has been demonstrated.

Case manager

159 His Honour also allowed an amount of $47,000 for a “case manager”. The description does not reveal any readily identifiable purpose, but Ms Flanagan’s explanation in her report gave a little more detail. She stated (somewhat obscurely) in her second report (par 11.8.4):

“Whilst I believe that Mr Imbree is capable of managing his own affairs, considering the nature and complexity of the level of care and assistance that he requires including ensuring that his health management plan is carried out, that attendant carers provided by the service provider are suitable and competent in providing services to Mr Imbree, as well as the inevitable need to source new providers and health care services when current service providers are no longer available …, provide support to Mr Imbree and assist him with achieving his goals and the inevitable need to maintain and keep equipment functioning … .”

160 This description suggests a considerable level of overlap between items of expense. However, in her evidence she provided some further clarification (Tcpt, p 147):

161 In cross-examination Ms Flanagan was asked (Tcpt, pp 148-149):

162 While one can understand some awkwardness in requiring a plaintiff with tetraplegia, and in a position of total dependence on his carers, to have to decide whether to terminate their services and find alternative services, allowance for such an eventuality would not appear to require routine attention. Further, Ms Flanagan’s evidence, somewhat ironically, seems to suggest that there had been a problem with the person assigned as “case manager” before the trial. There must be a limit to the level of bureaucratic complexity which is to be paid for by a defendant in such cases.

163 As the trial judge noted, Ms Flanagan’s view was not shared by Dr Buckley and his Honour saw “no reason to prefer the opinion of Ms Flanagan to the opinion of Dr Buckley”: at [179]. He further concluded that “the plaintiff impressed me as an alert person capable of participating in the management of his own affairs”. He accepted that “situations may arise, for instance with carers where the plaintiff may become dissatisfied with them and wish to have them replaced”: at [180]. His Honour thought it reasonable to provide a fund to address such problems as may occur from time to time and allowed $47,000 for such expenses.

164 The justification for the allowance, calculated at the rate of two and a half hours per month, remains somewhat obscure. However, the defendant has not established any clear error on the part of the trial judge and it is not appropriate, in my view, to interfere with that aspect of the award.

Improved housing

165 The house in which the plaintiff lived prior to the accident was acknowledged by both parties to be “unsuitable” thereafter. It was sold for $575,000, and a new property purchased at a cost of just over $1.5 million. The cost of the move was a fraction in excess of $1 million, to which an amount of almost $350,000 was spent on further modifications. The claim for suitable accommodation (putting to one side the additional $300,000 sought for the environmental control unit) was an amount of $1,353,865. (These figures were adjusted by agreement after judgment, to bring into account the expenses involved in selling the former home.) As a result, as his Honour noted, the plaintiff had “the benefit of a better class of property to enjoy, and he has a more valuable capital asset”: at [221]. Subject to an allowance on that account, and after noting the paucity of evidence in respect of the relevant valuations and expenses, his Honour concluded at [226]:

“With some hesitation, I conclude that it was reasonable of the plaintiff to purchase the present property and that it is reasonable to allow for the cost of internal modifications necessitated by the plaintiff’s special needs. Further, I conclude that it is reasonable to allow the plaintiff the cost of the installation of the lift and the modifications to the pool necessary to enable him to utilise the pool.”

166 The defendant submitted, and his Honour accepted, that there should nevertheless be a deduction of $500,000 for the fact that the plaintiff now enjoys a more valuable asset. That deduction was challenged by the plaintiff on the cross-appeal. It was stated to be an “arbitrary deduction” and “clearly contrary to the authorities”. The plaintiff sought to rely upon a passage in the joint judgment of Kirby P and Meagher JA in Marsland v Andjelic (1993) 31 NSWLR 162 at 176F, where their Honours declined to make a reduction in the award for home improvements because of an increase in the capital value of the property which would thus be achieved. Their Honours stated:

“A number of reasons support such a conclusion. First, such an increased capital value will only accrue upon the death of the appellant. Secondly, no doubt the alterations and adaptations will deteriorate over time and will require repair and maintenance at the expense of the appellant … .”

167 The issue was revisited by the Court, similarly constituted, in Nicholson v Nicholson (1994) 35 NSWLR 308. However, as explained by Kirby P at 327 (in a judgment with which Mahoney and Meagher JJA agreed) a distinction may need to be drawn between modifications which do give rise to a permanent capital gain and those which are likely to deteriorate over time. The President applied the reasoning of Glass JA in Frankom v Woods (NSWCA, 1 October 1980, unrep) to this effect, and reiterated the passage from Marsland, set out above.

168 A complaint that a plaintiff may obtain a capital benefit tends to distract attention from the legal effect of the Court’s judgment. The defendant is liable to compensate the plaintiff for the loss suffered as a result of his tortious conduct. Despite the approach adopted 30 years ago in Sharman v Evans, the plaintiff’s needs, resulting from his or her injuries may include appropriate modifications to his or her home. In some cases modification may be impracticable, or at least more expensive than the sale of the existing home and purchase of a new home, more suitable to the plaintiff’s circumstances. Where modifications are undertaken, or a new home purchased, prior to trial, as with other past expenses, the actual expenditure may provide evidence of the relevant item of compensation. However, in general terms, it will always be open to a defendant, unless bound by some form of estoppel, to challenge the reasonableness of the actual expenditure, or, in an appropriate case, the causal relation between the expenditure and the injury. In some situations, expenditure which may seem unreasonable in an abstract sense may be justifiable because it is a reasonable attempt at mitigating loss. For example, in the present case, the plaintiff was required to stay in hospital until alternative accommodation was arranged, no doubt at significant expense. The defendant’s insurer apparently took some part in arranging the new accommodation, although it was not suggested in this case that its involvement precluded it from challenging the reasonableness of the expense actually incurred.

169 Properly understood, the exercise undertaken by the trial judge in the present case did not involve discounting the cost of home modifications, because they would provide a capital gain to the plaintiff, but rather involved the calculation of the reasonable cost of alternative suitable accommodation. Neither the defendant nor the Court was bound to accept the price paid for the new home as the reasonable cost of alternative accommodation. The exercise undertaken by his Honour involved a correct application of principle.

170 There is a sense in which reference to “capital gain” is anomalous. What the Court awards is an amount of damages discounted, in respect of future expenditure, to achieve a present value. What the plaintiff in fact does with that amount is not subject to the control of the Court, except where the plaintiff is incapable of managing his or her affairs and the money is vested in a protective commissioner. If, after trial, the plaintiff invests the money astutely and makes a substantial profit, that is not taken into account, nor is the possibility that such a result may be achieved. By parity of reasoning, if the plaintiff has purchased alternative accommodation prior to trial, there is no need to take into account any increase in value which has already accrued.

171 Accordingly, the complaint made by the plaintiff on the cross-appeal must be that the inclusion of an amount of $519,078 for suitable accommodation demonstrated error.

172 His Honour allowed home improvements in the amount of $347,777, together with an additional amount of $519,078 as the cost of obtaining more suitable premises. Given the value of the plaintiff’s former house, as evidenced by the sale at $575,000, it is apparent that his Honour allowed as the value of a suitable house, prior to modification, a little over $1 million. That conclusion obtains support from the report of a valuer, Grahame Brook, who stated in a report dated 12 January 2004:

“To purchase a property with the potential to renovate it seems that the market is looking at over $1,000,000 and the better areas from about $1,500,000.”

It appears that his Honour placed no significance on the difference between the language of “looking at over” and “from about”. No error can be derived from that approach. Accordingly, it appeared that his Honour treated the amount of $500,000 as an upgrade in the desirability of the property, for the which the defendant was not required to pay. That conclusion was supported by evidence and should stand.

Conclusions

173 It follows that I would interfere with the judgment of Studdert J in two respects. In favour of the Appellant (defendant) I would vary the reduction in the plaintiff’s award on account of contributory negligence. In favour of the Respondent (plaintiff) I would add an amount on account of future gratuitous domestic assistance. The so-called “short minutes to finalise judgment” provided that the damages, as assessed, prior to reduction for contributory negligence, totalled $11,115,290. After relevant adjustments and on the basis that the plaintiff bore two-thirds of the liability for the accident and the defendant one-third, the resulting award should be $3,714,048.

174 The further amended defence asserted that the defendant was entitled to credit for amounts paid by the defendant’s insurer to or on behalf of the plaintiff, which amounts were agreed as $2,614,557. There is no dispute as to the defendant’s entitlement to that reduction. The balance payable in favour of the plaintiff is therefore $1,099,491. He is entitled to a judgment in his favour in that amount.

175 The “short minutes to finalise judgment”, although purporting to be in the form of “orders” were not in usual terms. Whether the orders were taken out is not clear. The notice of appeal states that judgment was entered in the sum of $7,780,703 which, if true, made no allowance for payments made by the defendant.

176 The short minutes filed after the delivery of judgment also provided that the defendant pay the plaintiff’s costs of the proceedings “on the usual basis up to and including 22 March 2006 and on an indemnity basis thereafter”. There was no appeal against that order. (Indeed, the notice of appeal did not seek any orders at all, an objection which the plaintiff may have been willing to overlook, as neither his notice of cross-appeal nor his amended notice of cross-appeal sought any orders either.) Because, presumably, there was an offer of compromise made on or about 22 March 2006, it may be appropriate to set aside any order made by the trial judge in relation to the costs of the trial, but the parties should be given an opportunity to consider that issue.

177 So far as the costs of the appeal are concerned, the notice of appeal identified nine separate headings and thirty grounds. The Appellant has been successful in relation to only one matter, namely the assessment of contributory negligence. However, it is a matter of some moment in relation to the ultimate judgment. The Respondent, on the other hand, was unsuccessful in relation to four of the five grounds of cross-appeal, although one ground, being the challenge to the correctness of the High Court judgment in Cook v Cook was not pressed and did not, in any event, affect the outcome of the proceedings. On the other hand, he has been successful in obtaining an amount for future gratuitous assistance and has otherwise retained the various items of damages allowed by the trial judge.

178 There are two other factors to be considered in relation to the costs of the appeal. First, the Respondent (plaintiff) was also unsuccessful in his objection to the finding of contributory negligence based on a lack of pleading with respect to failure to give instructions to the inexperienced defendant driver. As already noted, there was no express pleading of that ground in the cross-appeal. Secondly, although the Appellant’s success in relation to contributory negligence has a major effect on the outcome, the time devoted to the topic on the appeal was relatively minor, as the issues it raised were largely debated in the context of the duty of care and the relevant standard to be applied.

179 Given that neither party sought an order for costs, it is tempting, in the circumstances outlined above, to order that each party bear his own costs of the appeal. However, the parties have not been heard on that topic and, if they are unable to agree on an appropriate outcome, and either wishes to seek an order for costs, such party should file written submissions setting out the order sought and the arguments in support thereof within 14 days. The other party (or parties) may have seven days to respond in writing.

180 Subject to any intractable issue in relation to costs, the Court assumes that the parties will be able to agree the orders necessary to dispose of the appeal in accordance with these reasons and directs that short minutes, in an appropriate form, be filed within 14 days.

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Citations

McNeilly v Imbree [2007] NSWCA 156

Most Recent Citation

High Court Bulletin [2008] HCAB 8

Cases Citing This Decision

9

Imbree v McNeilly [2008] HCA 40

Dang v Chea [2013] NSWCA 80

Thornton v Sweeney [2011] NSWCA 244

Cases Cited

29

Statutory Material Cited

9

Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28

Podbrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34

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

CITATION:	McNEILLY v IMBREE [2007] NSWCA 156
HEARING DATE(S):	29 and 30 March 2007
JUDGMENT DATE:	2 July 2007
JUDGMENT 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 (1997) 190 CLR 1 Marsland v Andjelic (1993) 31 NSWLR 162 Matthews v McCullock of Australia Pty Ltd [1973] 2 NSWLR 332 Nicholson v Nicholson (1994) 35 NSWLR 308 Perrett v Robinson (1988) 169 CLR 172 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Radford v Ward (1990) Aust Tort Rep 81-064 Sharman v Evans (1977) 138 CLR 563 Skulander v Willoughby City Council [2007] NSWCA 116 Smith v Jenkins (1970) 119 CLR 397 Solomons v District Court (NSW) (2002) 211 CLR 119 State Rail Authority (NSW) v Brown [2006] NSWCA 220 Stevens v Head (1993) 176 CLR 433 Sweedman v Transport Accident Commission (2006) 80 ALJR 646 Wieben v Wain (1990) Aust Torts Rep 81-051 (QSC) Australian Constitutional Law and Theory (4th ed, 2006), pp 154, 157-161 The Law of Torts (9th ed, 1998), pp 341, 342 The Law of Torts in Australia (4th ed, OUP, 2007), pp 444, 445
PARTIES:	Jesse McNeilly – First Appellant/First Cross-Respondent Qantas Airways Limited – Second Appellant/Second Cross-Respondent Paul Anthony Imbree – Respondent/Cross-Appellant
FILE NUMBER(S):	CA 40568/06
COUNSEL:	K. Rewell SC/M. Cleary – Appellants A. Morrison SC/A. Stone - Respondent
SOLICITORS:	TL Lawyers – Appellants Turner Whelan - Respondent
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20055/05
LOWER COURT JUDICIAL OFFICER:	Studdert J
LOWER COURT DATE OF DECISION:	22 August 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	[2006] NSWSC 680