Imbree v McNeilly;McNeilly v Imbree  HCA 40 (28 August 2008)
This landmark decision has re-defined the law governing the standard of care owed by a learner driver to his/her supervising passenger in the context of a personal injury claim. It means that the supervising passenger is owed the same objective standard of care by the learner driver as that which the learner driver has always owed other road users (or other passengers): the standard of a reasonable driver. The fact that the supervising passenger has knowledge of the learner driver’s inexperience will not diminish that standard of care, although it may be relevant to establishing whether the supervising passenger should bear some of the blame for his/her injuries.
The majority of the High Court elected not to follow its earlier landmark decision in Cook v Cook (1986) 162 CLR 376, the case which had established a contrary principle and in which the majority had relied upon the now outdated legal concept of “proximity”.
The claim itself arose out of a motor vehicle accident in the Northern Territory. The claimant was rendered a tetraplegic when the vehicle in which he was the front seat passenger overturned after the defendant driver swerved to avoid a piece of debris on the road, and then overcorrected. The defendant driver was aged 16 and unlicenced, both facts known to the claimant. The defendant driver had been told not to exceed 80km/h and up until the point of the accident had driven uneventfully.
The trial judge and the Court of Appeal had both applied a reduced standard of care when judging the driver’s actions to take into account the claimant’s knowledge of the driver’s inexperience, as Cook v Cook demanded. This produced mixed results. The trial judge found for the claimant supervising passenger and awarded more than $9.5 million but reduced that award by 30% for contributory negligence. A majority in the Court of Appeal also found for the claimant (but for different reasons to the trial judge) but a majority (being a differently comprised majority) thought that the claimant should bear two thirds responsibility for the accident.
The High Court restored the original findings of the trial judge. In terms of apportionment, the majority found the claimant should have instructed the defendant driver to make no sudden change of direction or speed on a dirt road and to straddle the debris rather than try to swerve it.
Underpinning the decision of the majority of the High Court is the practical difficulty of drawing distinctions “between ‘inexperience’ on the one hand and ‘prudence’ on the other” [at 57]. The majority recognised that there will usually be limits to what the supervising passenger can actually do to prevent an accident from occurring once driving has commenced.
The decision is a victory for common sense particularly in those situations where a car load of individuals are injured all of whom may have equal knowledge of the driver’s inexperience and where the law previously would have applied different standards of care to their individual claims.
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