Analysis of Tort of Negligence

This research project critically analyzes the concept of tort of negligence in the light of two case laws Cook v Cook and Imbree v McNeilly;McNeilly v Imbree. It discusses the elements of tort of negligence, including duty of care, breach of duty, damages caused, and causation. The application of these principles is examined in the cases of Cook v Cook and Imbree v McNeilly, and the implications of the decisions are discussed. The conclusion highlights the universal standard of care owed by all drivers, regardless of their experience or age, towards their passengers.

Running head: ANALYSIS OF TORT OF NEGLIGENCE
ANALYSIS OF TORT OF NEGLIGENCE
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1ANALYSIS OF TORT OF NEGLIGENCE
Introduction:
In the present research project, the concept of tort of negligence has been critically
analyzed in the light of two case laws Cook v Cook1 and Imbree v McNeilly;McNeilly v Imbree2.
In the first case of Cook v Cook, the High Court in Australia opened a new development in the
doctrine of proximity in negligence. But such concept was regarded as outdated by many jurists.
Thus, it was overruled in Imbree v McNeilly;McNeilly v Imbree case as the former case departed
from the fundamental concept and did not able to get any fruitful result. However the judgment
in the former case continued to be followed for more than 20years until it was contradicted in the
Imbre case in 2008. In the following part of this assignment, the concept of tort of negligence,
breach of duty and the legal principles behind these two cases have been elaborated.
Discussion:
Tort law of Australia comprises of Common law mainly and legislation to some extent.
The Law of Negligence and Limitation of Liability Act3 was enacted to consolidate and reform
the law of negligence and other relevant sections. A act without any due care causing injury
comes under the tort of negligence. This category of tort was dealt in Donoghue v Stevenson4 by
Lord Atkin. The concept of negligence refers that people must exercise reasonable care in their
act by taking into consideration the possible harm that can be foreseeably seen to cause to other
person or property. The main elements of Tort of negligence5 are as follows;
 Duty of care,
1 Cook v Cook (1986) 162 CLR 376.
2 Imbree v McNeilly; McNeilly v Imbree (2008) 236 CLR 510.
3 Law of negligence and limitation of liability Act 2008.
4 Donoghue v Stevenson [1932] UKHL 100.
5 Stickley, Amanda P. Australian torts law.( LexisNexis Butterworths, 2016).

2ANALYSIS OF TORT OF NEGLIGENCE
 Breach of duty,
 Damages caused
 Causation.
Duty of Care:
The defendant has a legal duty to the plaintiff to exercise reasonable care, the failure of
which made the defendant liable. In the case of Caparo Industries Plc v Dickman6, the test to
identify duty of care is being analyzed. The three steps to determine whether duty of care has
been performed are (a) whether it is reasonably foreseeable, (b) whether there is any proximity
relationship between the plaintiff and defendant and (c) whether it will be fair and just to impose
the liability on the defendant.
Breach of Duty:
Once it is shown that defendant has a duty to perform towards the plaintiff, then the next
step is to identify whether such duty is breached or not. When it is shown, that the duty is
breached, then only the claimant will be able to seek damages from the defendant as seen in
Bolton V Stone7. In the case of Dorset yacht v Home Office8, it was held that all people in the
society owe duty to exercise reasonable care towards others.
Damages:
The next step is to find out that damage is caused to the plaintiff dues to the breach of
duty. Moreover, the damage or loss is of forseeable kind. It was held by The Wagon Mound no
6 Caparo Industries PLC v Dickman [1990] UKHL 2.
7 Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078.
8 Dorset yacht v Home Office [1970].

3ANALYSIS OF TORT OF NEGLIGENCE
19. If the loss is of forseeable nature, the defendant is responsible for the total loss, even though
the actual loss is much more than it is assumed.
Causation:
In order to prove tort of negligence, next step is to show that there is a connection
between the causation and breach of duty. In other words, it has to be shown that the breach of
duty has resulted into the causation of damage to the plaintiff or claimant. It was observed in the
case of Barnett v Chelsea & Kensington Hospital10. The causation is of two types; factual
causation and legal causation. Factual causation means the actual cause. In order to make the
defendant liable, it has to be proved that the loss or damage is caused by the particular acts or
omissions. If there is more than one causes in succession, it is possible to find the factual cause
of the damage as laid down in Baker v Willoughby11. However, when there are two or more
cases that operate concurrently, it will be difficult to identify due to which cause the damage is
caused. In such case burden of proof lies on the claimant as laid down in McGhee v National
Coal Board12.
Contributory Negligence:
One of the defences available to the defendant is the contributory negligence. It acts as a
partial defence to the defendant if he succeeds to prove that the plaintiff has also failed to take
reasonable care to ensure his safety. Such failure has resulted into the contributory cause of the
damage suffered. This defence of contributory negligence was observed in the Davies v Swan
9 Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd[1961].
10 Barnett v Chelsea & Kensington Hospital Management Committee [1968] 2 WLR 422.
11 Baker v Willoughby [1970] AC 467.
12 McGhee v National Coal Board [1973] 1 WLR 1.

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Motor Co13. It is available when the plaintiff’s own negligence has resulted into his own injuries
as found in Pennington v Norris14.
Application:
In the case of Cook v Cook, the defendant Margaret Cook is an inexperienced driver. He
did not have driver’s license or learner’s permit. Such fact is known to Irene Cook, the plaintiff.
During a family function, both of them planned to visit a local shop. Irene insisted Margaret to
drive the vehicle. Margaret opposes to this but was compelled by Irene. Margaret while driving
through the junction accelerated and hit against an electricity post. Due to this, Irene got injured.
Irene filed a case against Margaret for damages due to her act of negligence. Though the trial
court dismissed Irene’s claim, the appellate court overturned previous decision. Moreover,
Irene’s damages were reduced by 70% due to her contributory negligence. Margaret appealed to
High Court which dismissed the appeal.
In this case, the issue before the court was whether a non professional driver has the same
duty of care as that of an experienced driver towards the passenger as well as the pedestrians
when his inefficiency is known to the passengers. In this case, Margaret was judged against the
standard of an inexperienced and unqualified driver. The decision established that in exceptional
scenario the standard of care as expected from a driver to his passenger can be less than that from
an experienced driver. When a person has a duty to take care of another, the court will determine
exactly what duties are owed by the former to the latter. This is known as ‘standard of care’.
Under the Civil Liability Act15, a professional like doctor or accountant is held to the standard of
13 Davies v Swan Motor Co [1949] 2 KB 291.
14 Pennington v Norris (1956) 96 CLR 10.
15 Civil Liability Act 2002.

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their fellow professionals. the objective standard of care is to balance the rights of the parties by
considering what type of care is required towards each other between the parties.
However, in Imbree v McNeilly, the High court departed from the decision of Cook v
Cook and overruled it. The landmark decision had re-ascertained the law controlling
responsibility of a learner driver to his passenger in reference to the personal injury claim. It is
held that the learner driver has the same standard of care and duty to his co passenger and also
pedestrians as an learned driver. The inexperience or learner driver also has the same
responsibility as of a standard driver.
In the given case, a claim arose when a motor vehicle accident occurred due to which the
plaintiff suffered an injury. The plaintiff was the front seat passenger who was supervising the
defendant driver. The driver here was only 16years old and had secured a NSW learner permit. It
was known to the plaintiff that the driver was inexperienced. In their journey, the plaintiff
allowed his sons and the defendant to drive for 30 to 40 minutes each on several turns. At the
time of accident, the defendant was driving. He saw a tyre piece debris on road. He tried to turn
his vehicle to the right. Though the plaintiff yelled at him to brake, he drove ahead and the
vehicle rolled down. The plaintiff suffered spinal injuries and became tetraplegic. In this case
majority of the High Court decided not to follow the earlier landmark decision in Cook v Cook.
The court in the case of Imbree hold that the decision in Cook v Cook wa wrong and that
the learners have same duty of reasonable care to their co-passengers as any other drivers have .
This brings Australia in the same footing as that of United Kingdom in the case of Nettleship v
Weston. The decision in the case of Cook v Cook must be overturned as firstly, it was decided in
the days when High Court believed in “proximity”, secondly, because duty of care cannot be

6ANALYSIS OF TORT OF NEGLIGENCE
dependant on knowledge or experience. Finally, the law has shown departure from ordinary
concept of ‘reasonable care’ such as cases involving a particular skill by a professional, or
children, such departure is across the board and not one which varies with particular plaintiff.
Thus decision of Cook was not followed. Similarly, in Wheeler v Macdonald, the Supreme Court
of New South Wales held that where the finding of negligence was unavoidable, it was not
required to follow the decision of Cook.
In the decision of Imbree, the conduct of a inexperienced driver was judged by reference
to a reasonable driver. Before this, Cook v Cook remained good law where a defendant could
argue that an accident caused by him did not amount to negligence, as the passenger knew that
the driver was inexperienced and thus the passenger is aware of the fact that better standard of
driving could not be expected from him. However, it is overruled now.
In Imbree, the basis of contributory negligence comprised of the failure of the supervising
co-passenger to provide the inexperienced driver with proper guidance. But, contributory
negligence could also be held as the passenger knew that the driver was a learner and
inexperienced for which risk of accident was there. In this regard, it must be noted that the issue
of inexperience has also been reflected in Section 141 of the Motor Vehicles Compensation Act
1999. This section mirrors the decision of High Court in Imbree.
The decision of Australian High Court relinquished the differences between the
categories of drivers of motor vehicles and applied a single, unanimous and universal standard of
care, irrespective of driver’s personal characteristics like age, experience competence and others.
Age of an inexperienced driver is not a matter while judging the standard of care owed by him to
his passengers as seen in Zanner v Zanner.Thus, all the claimants including professional or non-

7ANALYSIS OF TORT OF NEGLIGENCE
professional instructors, other co-passengers or pedestrians can now expect the same degree of
care and duty when driving a vehicle as a reasonable driver. It is found that the Imbree’s
conclusion was highly influenced by public policy. Imbree also recognized that the contributory
negligence is a better option than vulnerability while dealing with an individual claimant’s
failure to take self protection. The court’s rejection of the decision of Cook and the proposition
that a passenger’s knowledge of the inexperience or incapacity of the driver is relevant to the
duty of care owed are according to section 141 of the Motor Accidents Compensation Act 1999.
But it has implications for other claimant v defendant relationships.
Conclusion:
A perusal of the above mentioned two cases and the provisions enumerated above, it can
be said that this article has thoroughly analyzed the principles and policies underpinning the
standard of care of a learner driver. The standard of care of any driver irrespective of their
experience or age will remain same towards the passengers. However, both these cases are also
subject to criticism that though a standard of care is being owed by a driver to his passengers but
there lies no such duty towards the pedestrians. In addition to that, because of higher level of
care imposed as a result of decision of Imbree, one can expect more importance in future cases
on contributory negligence or voluntary assumption of risk to limit the liability of a driver. But, a
learner driver’s standard of care can no way be influenced or reduced by the knowledge of
passenger of the inexperience or incapacity of a driver. The conclusion in Imbree has significant
applications in other claimant v defendant relationships also. Undoubtedly, these will be subject
to High Court considerations in future.

8ANALYSIS OF TORT OF NEGLIGENCE
References:
Baker v Willoughby [1970] AC 467.
Barnett v Chelsea & Kensington Hospital Management Committee [1968] 2 WLR 422.
Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078.
Caparo Industries PLC v Dickman [1990] UKHL 2.
Civil Liability Act 2002.
Cook v Cook (1986) 162 CLR 376.
Davies v Swan Motor Co [1949] 2 KB 291.
Donoghue v Stevenson [1932] UKHL 100.
Dorset yacht v Home Office [1970].
Imbree v McNeilly; McNeilly v Imbree (2008) 236 CLR 510.
Law of negligence and limitation of liability Act 2008.
McGhee v National Coal Board [1973] 1 WLR 1.
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961].
Pennington v Norris (1956) 96 CLR 10.
Stickley, Amanda P. Australian torts law.( LexisNexis Butterworths, 2016).