Cook v Cook

(1986) 68 ALR 353; 162 CLR 376

Chapter 4 (page 170)

Note: This decision was recently overturned in Imbree v McNeilly (2008) 248 ALR 647.

Relevant facts

Margaret Cook (MC) did not hold, and never had held, a driver’s licence or learner’s permit and she was quite inexperienced as a driver. This was well-known to Irene Cook (IC), a relative of MC by marriage.

During a family gathering, MC and IC set out to drive to a local shop. On the drive, MC told IC that she intended to apply for a learner’s permit the following day. In response, IC stopped the car, got out, went round to the driver’s side and told MC: ‘If you are going to drive you may as well start now’. MC resisted but after further encouragement from IC started to drive. While driving through an intersection, MC deliberately accelerated and steered the car off the road to avoid a parked car and drove the vehicle into a concrete electricity post. IC was injured.

IC sued MC for damages on the basis of negligence. The trial judge dismissed IC’s claim. On appeal to the Full Court of the Supreme Court of South Australia, the trial judge’s decision was overturned but IC’s damages were reduced by 70% by reason of contributory negligence. MC appealed to the High Court.

Legal issue

Does the duty of care owed by a driver to a passenger require that the driver exercise the degree of skill which could reasonably be expected of an experienced and competent driver in the circumstances, even if the driver and the passenger both know that the driver is unqualified and lacks that skill?

Decision

On 2 December 1986, the High Court unanimously held that MC had been negligent and that the appeal should be dismissed. The majority (Mason, Wilson, Deane and Dawson JJ) held that in special and exceptional circumstances the standard of care owed by a driver to a passenger may be modified from that which is expected of a reasonably competent and experienced driver. Given the trial judge’s findings that (1) MC was to the knowledge of IC quite inexperienced and had not even obtained a learner’s permit; (2) IC was not an unwilling passenger and had instigated the driving of the vehicle by MC; and (3) at the time of the accident, the relationship of MC and IC bore some similarity to that of instructor and pupil, there were special and exceptional circumstances giving rise to a modified standard of care. That is, MC should be judged against the standard expected of an inexperienced and unqualified driver. Nevertheless, the majority found that MC’s action in accelerating off the road to avoid the parked car was carelessness over and above that which could be expected of mere inexperience.

According to Justices Mason, Wilson, Deane and Dawson (at 357):

In that general category of case, the standard of care required, being objective and impersonal, is not modified or extended by the personal driving history, ability or idiosyncrasy of the particular driver. It is the degree of care and skill which could reasonably be expected of an experienced and competent driver. That is not, however, to say that, regardless of the circumstances of the particular case, the relationship between a driver and a passenger is, for the purposes of the law of negligence, a completely standardised one or that the content of the duty of care where that general relationship exists is necessarily immutable. While the personal skill or characteristics of the individual driver are not directly relevant to a determination of the content or standard of the duty of care owed to a passenger, special and exceptional facts may so transform the relationship between driver and passenger that it would be unreal to regard the relevant relationship as being simply the ordinary one of driver and passenger and unreasonable to measure the standard of skill and care required of the driver by reference to the skill and care that are reasonably to be expected of an experienced and competent driver of that kind of vehicle.

Further (at 360):

It is neither possible nor desirable to seek to identify in advance the circumstances which will, as a matter of law, suffice to take a relationship out of the ordinary class of relationship between the driver of a motor vehicle and a passenger in it into a special category. The most that can be said is that the circumstances must be special and exceptional in the sense that they so alter the ordinary relationship of driver and passenger that it would be plainly unreasonable for the standard of the duty of care owed by the driver to the passenger to be what could reasonably be expected of an experienced, skilled and careful driver.

Significance

This decision established that in special and exceptional circumstances the standard of care owed by a driver to a passenger may be modified from that which is expected of a reasonably competent and experienced driver.