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Date: Thu, 28 Aug 2008 06:41 From: Neil Foster Subject: Duty of care owed by learner drivers - HCA overturns Cook
Dear Colleagues Alerted by Harold Luntz, I notice that the High Court of Australia has now handed down its decision in Imbree v McNeilly [2008] HCA 40 (28 August 2008). The 6-1 decision (one of the last ones to be handed down by Gleeson CJ before he retires, I suspect) holds that the previous decision in Cook v Cook (1986) 162 CLR 376 should be over-turned. That decision stood for the proposition that the standard of care owed by a learner driver, to someone who was voluntarily instructing them, should be expressed as a lower standard than that owed to other road users. The court in Imbree holds that this is wrong, and that learners owe the same general duty of reasonable care to their instructors as they (and other drivers) owe to all other road users. This brings Australia back into line with the UK position in Nettleship v Weston [1971] 2 QB 691. The longest judgment on the substantive issue is a joint one given by Gummow, Hayne and Kiefel JJ, which rules that the principle in Cook should be overturned (1) because it was decided in the days when the High Court believed in "proximity" (although they acknowledge that simply because the word was used is not on its own a good enough reason - [47]); (2) because a duty of care cannot be made to hinge on knowledge or inexperience - [55]-[56]; (3) in cases where the law does allow some fact-based departure from ordinary "reasonable care", such as cases of profession of a particular skill by a professional, or children, the departure is across the board rather than being one that varies with specific plaintiffs - [70]. Hence at [71] Cook should no longer be followed. The judgement then goes on at some detail to consider the implications of this view for the judgement of Dixon J in Insurance Commissioner v Joyce. Someday someone should write an article about the continuing influence of Dixon J in the law of Australia! The cases that the High Court of Australia spends most time on seem to be those where they have to work out how to either distinguish or avoid decisions of this revered figure (e.g. the discussions in Sweeney v Boylan on how to maintain the authority of Dixon J's judgement in CML). That is so even where, as here, Dixon J was in dissent!! I must say, though, that I still haven't quite sorted out what the significance of the discussion of Joyce is here - I get a feeling, however, that it may be used to suggest a greater role in future for the previously almost-defunct doctrine of volenti. (See [79]ff.) Gleeson CJ mostly agrees with the plurality (which now seems to be the word we have to use to describe a joint judgement which does not constitute the whole majority - it is a useful term but I wish it wasn't so ugly!). He does take time, however, to say why the presence or absence of insurance is not relevant to the issue, at [21]-[23]. On this point I think he makes much sense, though this is contrary to the detailed discussion of the insurance issue by Kirby J. Kirby J agrees with the abolition of Cook, though he does so only, he says, because Cook is contrary to the need for an objective standard of care due to the presence of universal, compulsory, third party insurance across Australia. He then spends a lot of time attempting to persuade the sceptics that the presence of insurance (at least statutorily imposed, compulsory, insurance) must be taken into account by the courts in determining issues of the standard of care today (from [131] ff, even before his heading at para [146]). He cites others, of course, but in particular refers to his own attempts in the NSW CA and in the HC over the years to introduce the topic as relevant - [167]. Presumably his Honour realises that with his own retirement pending next March he will not have many more chances to influence the law on the issue. (If you read the transcript, counsel for the defendant wriggled and squirmed not to raise the insurance issue - but Kirby J at [138] said it was his duty as a Judge of the court to deal with it.) Despite my immense respect for Kirby J's views, I must say I am unpersuaded. For me, the system is supposed to work by insurance allocating risks in accordance with what the law says the risks are. It becomes viciously circular if the law starts to determine risks by trying to guess whether insurance will be available, either in a specific case or in the future. And legal rules (pace cases like Fairchild and Barker) are meant to be generally applicable, not crafted for specific pockets of fact situations. No doubt others will disagree. Kirby J to give him full credit notes a range of academic opinion (how fantastic to have a judge who not only admits he reads academics but interacts with them in judgements!) at [174]ff including Fleming, Peter Cane, Michael Jones, Deakin/Johnston/Markesinis and Jane Stapleton. Heydon J points out that the case could easily have been decided without resolving the authority of Cook (the trial judge and 2 out of the 3 CA judges took the view that the defendant driver had been careless over and above the "mere inexperience" of a learner, and so even if Cook were correct had been in breach) - and hence declined to comment on the point. But there is a clear majority for over-ruling. Crennan J agrees with the plurality and Gleeson CJ. And an interesting point is that the NSW Parliament has already enacted a provision which statutorily overturns the previous Cook rule, though it is not due to commence until 1 October 2008 - see fn 29. But now the other States don't have to!
Regards Neil Foster
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