Curwoods Case Notes - High Court Overturns Cook v Cook

Imbree v McNeilly [2008] HCA 40

Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and

Keifel JJ

In Brief

An inexperienced driver owes the same standard of care as

any other person driving a motor vehicle - to take reasonable

care to avoid injury to others.

The obligation to drive to the standard of a reasonable

driver is not to be qualified by reference to the holding of

a licence or by reference to the driver's level of

experience.

The decision in Cook v Cook [1986] HCA 73;

(1986) 162 CLR 376 is no longer good law and should not be

followed.

Background

The High Court handed down its decision in the matter of

Imbree v McNeilly on 28 August 2008.

The plaintiff was injured in a motor accident in the

Northern Territory. At the time of the accident the plaintiff

was a front seat passenger who was "supervising" the

defendant driver.

The defendant driver was 16 years of age and had just

obtained a NSW learner's permit. The plaintiff knew that he

was inexperienced. During the course of their journey, the

plaintiff allowed both his son and the defendant to drive 30 to

40 mintues each on several occasions.

After visiting Ayers Rock and Kings Canyon, the party headed

towards Hermannsburg and Alice Springs on Larapinta Drive.

Initially the road was hilly and corrugated and the appellant

and another adult drove. However, when the road became 'a very

wide two lane dirt track with no significant corrugations'

the plaintiff allowed first his son, then the defendant to

drive.

Immediately prior to the accident, the defendant saw a piece

of tyre debris on the road. He attempted to steer the vehicle

to the right. Despite the plaintiff yelling at him to brake,

the defendant proceeded to the far right-hand side of the road

and then turned sharply to the left and accelerated, causing

the vehicle to roll.

The plaintiff suffered spinal injuries in the accident and

was rendered a tetraplegic.

Trial and Appeal

At first instance, Studdert J assessed damages in excess of

$9.5 million. His Honour found that the defendant breached the

duty of care he owed the plaintiff, but reduced damages by 30%

for the plaintiff's contributory negligence.

The Court of Appeal confirmed the finding of negligence, but

the Majority increased the contributory negligence reduction

from 30% to 66%.

Both the trial judge and the Court of Appeal proceeded on

the basis that Cook v Cook remained good law, as they

were bound to do.

In general terms, the High Court decided in Cook v

Cook that where a supervisor is aware that his or her

pupil driver is inexperienced, the standard of care which

arises from this relationship is of an unqualified and

inexperienced driver in the circumstances. In other words,

because the supervisor can not reasonably expect a high level

of competence from an inexperienced driver, a "lower"

standard of care applies.

High Court

Issues

In the High Court, the plaintiff argued that the Court of

Appeal had applied the wrong standard of care, which impacted

upon the assessment of apportionment of responsibility. The

plaintiff...