Australia: Curwoods Case Notes - High Court Overturns Cook v Cook

Last Updated: 3 September 2008
Article by Peter Hunt

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.


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


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 argued that Cook v Cook was wrong and should be overruled. Instead, the plaintiff's central proposition was that the defendant owed the same objective standard of care as any other driver, whether licensed or not.

In addition, the plaintiff argued that any contributory negligence did not cause the damage he suffered. In the alternative, the plaintiff argued that the Court of Appeal should not have interfered with the trial judge's assessment of contributory negligence.

The defendant submitted that the claim should be dismissed on the grounds that there was no departure from the standard of care required of the defendant. That is, having regard to the plaintiff's knowledge of the defendant's limited skills and experience, the defendant's driving did not depart from the standard of care the plaintiff was entitled to expect the defendant to exercise.


In the High Court, a joint Judgment was delivered by Gummow, Hayne and Kiefel JJ.

Chief Justice Gleeson and Kirby J each agreed with the joint Judgment, albeit adding additional reasons.

Justice Crennan also agreed with the joint Judgment, without further reasons.

Justice Heydon agreed with the conclusions reached by the joint Judgment, although his Honour indicated it was not necessary to re-consider the correctness of Cook v Cook in order to do so.

Standard of Care

The majority of the High Court held that Cook v Cook should be overruled and that the standard of care owed by the inexperienced driver to his supervisor was the normal standard of reasonable driver.

At paragraphs 69 to 72, Justices Gummow, Hayne, Kiefel JJ explained why Cook v Cook was bad law.

"69. The common law recognises many circumstances in which the standard of care expected of a person takes account of some matter that warrants identifying a class of persons or activities as required to exercise a standard of care different from, or more particular than, that of some wholly general and "objective community ideal". Chief among those circumstances is the profession of particular skill. A higher standard of care is applied in those cases. That standard may be described by reference to those who pursue a certain kind of occupation, like that of medical practitioner, or it may be stated, as a higher level of skill, by reference to a more specific class of occupation such as that of the specialist medical practitioner. At the other end of the spectrum, the standard of care expected of children is attenuated.

"70. But what distinguishes the principle established in Cook v Cook from cases of the kind just mentioned is that Cook v Cook requires the application of a different standard of care to the one defendant in respect of the one incident yielding the same kind of damage to two different persons, according to whether the plaintiff was supervising the defendant's driving or not. In all other cases in which a different level of care is demanded, the relevant standard of care is applied uniformly. No distinction is drawn according to whether the plaintiff was in a position to supervise, even instruct, the defendant although, of course, if the plaintiff was in that position, a failure to supervise or instruct may be of great importance in deciding whether the plaintiff was contributorily negligent.

"71. There is no warrant for the distinction that was drawn in Cook v Cook. Cook v Cook should no longer be followed in this respect.

"72. The principle adopted in Cook v Cook departed from fundamental principle and achieved no useful result. It is necessary, of course, to recognise that it is a decision that has stood for more than 20 years. Although it seems that there are few if any decided cases in which it has been applied to deny liability, it must be assumed that its application may have affected the terms on which cases have been compromised and the apportionments of responsibility that have been made by courts and parties. Yet despite these considerations, it is better that the departure from principle is now recognised. The plaintiff who was supervising the learner driver, the plaintiff who was another passenger in the vehicle, the plaintiff who was another road user are all entitled to expect that the learner driver will take reasonable care in operating the vehicle. The care that the learner should take is that of the reasonable driver."

Contributory Negligence

The issue of contributory negligence was dealt with briefly in the joint Judgment. At paragraph 96, Gummow, Hayne and Kiefel JJ held that the trial judge's finding of 30% contributory negligence was more appropriate in the circumstances:

"96. When it is recognised that one particular respect in which the [plaintiff] was found to be contributorily negligent was the failure, having observed the debris on the road, to instruct the [defendant] to straddle it, we are of the view that it is right to conclude that the [plaintiff's] responsibility for the accident was not insignificant. When coupled with a failure to offer the basic advice to a learner driver to make no sudden change of direction or speed on a dirt road, an apportionment of 30 per cent contributory negligence to the [plaintiff] was not unjust. Rather than prolong this litigation further, it is better that this Court substitute its view of the proper apportionment of responsibility by adopting the proportions that were assigned by the primary judge."


Standard of Care

Given the decision in Imbree, the driving conduct of an inexperienced driver is to be judged by reference to a reasonable driver.

When Cook v Cook remained good law, a defendant could argue that an error in the driving of the vehicle did not amount to negligence, because the passenger knew that the driver was inexperienced and, therefore, could not have expected a better standard of driving.

This argument is no longer available. An inexperienced driver's conduct is to be judged by reference to whether a reasonable, experienced driver would have made the same error in the circumstances. An inexperienced driver can no longer cite his or her inexperience as an excuse.

Contributory Negligence

Whilst the experience, or otherwise, of the driver does not affect the standard of care required of the driver, inexperience remains relevant to the assessment of contributory negligence.

In Imbree, the grounds for contributory negligence involved the failure of the supervising passenger to provide the inexperienced driver with proper instruction. However, contributory negligence could also be alleged on the grounds that the passenger was aware that the driver was inexperienced and that there was, therefore, an increased risk of injury. Such an argument would be particularly relevant in cases involving a group of youngsters joyriding with an inexperienced driver.

Section 141

It should be noted that the issue of inexperience has also been addressed by the introduction of s 141 into the Motor Accidents Compensation Act 1999. Section 141 reads:

This amendment appears to mirror the High Court's conclusions in Imbree.

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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