Imbree –v– McNeilly  HCA 40
(28 August 2008)
Today the High Court delivered its decision in the matter of
Imbree –v– McNeilly  HCA 40 (28
August 2008). It is an important decision.
Cook –v– Cook stood for the
proposition that there may be circumstances in which a special
relationship exists such that the standard of care may vary
having regard to matters specific to that relationship. In
Cook –v– Cook, the Court found
that an inexperienced learner driver may owe a lesser standard
of care to the supervising passenger (because of the
passenger's knowledge of the drivers inexperience).
In Imbree's case, the High Court concluded:
"...the standard of care which the driver owed the
passenger was the same as any other person driving a motor
vehicle – to take reasonable care to avoid injury
to others. The standard thus invoked is the standard of the
"reasonable driver". That standard is not to be
further qualified, whether by reference to the holding of a
licence to drive or by reference to the level of experience
of the driver."
That said, there is still scope to argue breach of duty,
voluntary assumption of risk (where permissible) and
contributory negligence. Indeed, in Imbree's case the
plaintiff's damages were reduced by 30% because the
plaintiff failed to advise the inexperienced driver properly of
an obstacle (tyre debris) on the road and the appropriate
manner of driving.
In practical terms the High Court's reasoning may be
favourable to CTP insurers..
Instead of complicating matters with arguments about duty of
care and breach of duty, it will allow the trial judge to focus
on the practical assessment of responsibility for an accident
including reductions for contributory negligence where the
passenger has failed to take care of their own safety.
In reality many trial judges are reluctant to apply Cook v
Cook because plaintiffs lose outright. Imbree's case
gives rise to a greater likelihood that negligence will be
established but offers greater scope to reduce claims on
account of contribution.
Imbree's case is also relevant to the dispute as to
the standard of care to apply in matters involving an impaired
plaintiff (in issues of liability). In light of
Imbree's case, that standard should be an objective
one. Therefore the impaired plaintiff's claim should
now be reduced according to the objective standards of a
We also note that Justice Kirby (in supporting the majority
view on the primary issues) also discussed the relevance of CTP
insurance in negligence matters (and in particular that CTP
insurance is a matter to which the Court can and should have
regard). That discussion is not endorsed by the other Judges
but it is an approach worth being aware of.
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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