Cook v Cook

162 CLR 376
1986 - 1202B - HCA
68 ALR 353

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(Judgment by: Brennan J.)

Cook v Cook

Court:

Judges: Mason J.; Wilson J.; Deane J.; Dawson J.

Brennan J.

Subject References:
Negligence
Precedent

Hearing date: Adelaide, 28 August 1986; 29 August 1986
Judgment date: 2 December 1986

Canberra

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Judgment by:
Brennan J.

A careless act causing personal injury is the archetypal category of negligence. That is the category of case with which Lord Atkin was dealing in Donoghue v Stevenson [1932] AC 562 . The neighbour to whom a duty to take reasonable care is owed is the person to whom injury might foreseeably be caused by the careless doing of the act, the test of reasonable foreseeability depending on the closeness and directness of the effect of the act on the person or persons affected by it. For reasons which I have stated elsewhere (see Jaensch v Coffey (1984) 155 CLR 549 , at pp 560-563, 574-576; San Sebastian Pty Limited v Minister Administering the Environmental Planning and Assessment Act 1979 (unreported) 25 November 1986, pamphlet p 26) I regard Lord Atkin's test of neighbourhood or proximity as satisfied by reasonable foreseeability of injury. That is an objective criterion. The criterion of reasonable foreseeability "eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question": per Lord Macmillan in Glasgow Corporation v Muir [1943] AC 448 , at p 457. In the ordinary case, a passenger in a car is clearly the driver's "neighbour" and there is no doubt but that the passenger was the driver's "neighbour" in this case. The question in dispute in this case is not whether there was a duty of care owing by the driver to the passenger but what was the standard of care required to discharge it. What is reasonable care?

The standard of care is fixed by reference to the caution which a person of ordinary prudence would observe in the particular circumstances: Vaughan v. Menlove (1837) 3 Bing(N.C.) 468, at p 475 (132 ER 490, at p 493). Consequently, "a defendant does not escape liability by proving that he is abnormal in some respect which reduces his capacity for foresight or prudence": McHale v. Watson (1966) 115 CLR 199 , per Kitto J. at p 213. In Nettleship v. Weston [1971] 2 QB 691 a majority of the Court of Appeal (Lord Denning M.R. and Megaw L.J.) held that the standard of care required of a driver does not fluctuate because of any inexperience or incapacity on the part of the driver, even if the driver's inexperience or incapacity is known to the passenger when he accepts carriage in the vehicle. Their Lordships held that where a duty of care is owed by an inexperienced driver to a passenger who knows of his inexperience, the standard of care required is the standard of the competent and experienced driver.

That was not the view of Latham C.J. and Dixon J. in The Insurance Commissioner v. Joyce (1948) 77 CLR 39 . Dixon J. said (at p 56):

"in a car intended as a conveyance, the gratuitous passenger may expect prima facie the same care and skill on the part of the driver as is ordinarily demanded in the management of a car. Unusual conditions may exist which are apparent to him or of which he may be informed and they may affect the application of the standard of care that is due. If a man accepts a lift from a car driver whom he knows to have lost a limb or an eye or to be deaf he cannot complain if he does not exhibit the skill and competence of a driver who suffers from no defect."

The last sentence may be open to objection as a general proposition of fact, but Dixon J. was referring to any condition which, to the passenger's knowledge, disables the driver from driving with the care and skill which an ordinary driver of ordinary prudence would exercise: cf. per Salmon L.J. in Nettleship, at pp 703-704. And so, though it is right to say that a driver's disabling condition does not itself affect the standard of care which is expected of him in driving, a passenger's acceptance of carriage with knowledge of the driver's disabling condition is a circumstance which is material to the assessment of the standard of care expected.

In Joyce's Case, an intoxicated driver put his defence to the passenger's claim on three alternative bases: no breach of the duty of care, volenti non fit injuria, and contributory negligence. Dixon J. said (at p 59):

"Of the three forms I have set out in which the driver may state his defence, for my own part I prefer the first. It appears to me that the circumstances in which the defendant accepts the plaintiff as a passenger and in which the plaintiff accepts the accommodation in the conveyance should determine the measure of duty and that it is a more satisfactory manner of ascertaining their respective rights than by opposing to a fixed measure of duty exculpatory considerations, such as the voluntary assumption of risk or contributory negligence."

Reasonable care is not susceptible of abstract definition; it must be related to particular circumstances. Thus, in Rootes v. Shelton (1967) 116 CLR 383 , where the question was whether one participant in the sport of waterskiing was in breach of a duty of care owed to another, Kitto J. said (at p 389):

"the issue ... is whether the defendant's act or omission was a breach of a duty of care which he owed to the plaintiff; and accordingly in a case such as the present it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plaintiff in joining in the activity. ... the conclusion to be reached must necessarily depend, according to the concepts of the common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiff's injury." (Emphasis added.)

As a duty of care is owed to individuals, the circumstances to which regard must be had in deciding what is required to discharge the duty in a particular case are the circumstances out of which the duty to the injured plaintiff arises.

To follow the Nettleship approach is to deny the relevance of the circumstances which gave rise to the relationship out of which the duty of care arose, namely, "the circumstances in which the defendant accepts the plaintiff as a passenger and in which the plaintiff accepts the accommodation". It would be artificial to exclude those circumstances from consideration in determining what is reasonable care. A passenger who accepts carriage in a vehicle with knowledge of a condition which disables the driver from exhibiting the standard of care ordinarily to be expected of a prudent driver or who knows of a defect in the vehicle establishes a relationship with the driver different from the driver's relationship with other users of the highway. Knowledge of the disabling condition of the driver or the defect in the vehicle is knowledge of an unusual condition which may affect the application of the standard of care that would otherwise be expected. Dixon J. offered this analysis in Joyce's Case, at p 57:

"For those who believe that negligence is not a general tort but depends on a duty arising from relations, juxtapositions, situations or conduct or activities, the duty of care thus arises. For those who take the contrary view, the standard of care is thus determined. But whatever be the theory, the principle applied to the case of the drunken driver's passenger is that the care he may expect corresponds with the relation he establishes. If he knowingly accepts the voluntary services of a driver affected by drink, he cannot complain of improper driving caused by his condition, because it involves no breach of duty."

There is no conflict between the approach taken by Dixon J. and the rule that the standard of care is fixed by reference to the caution which would be observed by a person of ordinary prudence in the circumstances. The care which is expected of the driver in those circumstances is the care to be expected of a person of ordinary prudence who is disabled by the unusual condition of which the passenger has knowledge.

In the category of case of which the present case is an instance there is, in my respectful opinion, no criteria of relevance other than reasonable foreseeability (the criterion of a duty of care) and ordinary prudence in the circumstances (the criterion of the standard of care) - the "foresight or prudence" to which Kitto J. referred in McHale v. Watson. I am therefore unable in this category of case to adopt a concept of proximity other than reasonable foreseeability of injury as a tool for analysis or as a practical criterion for determining the existence of a duty of care. a fortiori , I am unable to adopt such a concept as a tool for analysis or a practical criterion for determining the standard of care required for discharging a duty of care. I would analyze the facts in the present case as follows: the driver was under a duty of care to the passenger because it was reasonably foreseeable that a failure to exercise reasonable care in driving was likely to result in injury to the plaintiff; the circumstances out of which the duty arose included the plaintiff's knowledge, when she accepted carriage in the vehicle, that the driver was inexperienced; the standard of care required to discharge the driver's duty in those circumstances is the standard of an inexperienced driver of ordinary prudence.

It is not easy to evaluate the driver's conduct in this case but, on balance, I agree with the view of Johnston J. in the Full Court that a prudent driver of the defendant's limited skill and experience would not have decided to accelerate the car and mount the footpath as she did. I therefore agree with my brothers that the defendant was in breach of the duty of care which she owed the plaintiff. I would not disturb the Full Court's apportionment of liability. I also entirely concur in what my brothers say with respect to the authority now to be accorded to English decisions.

The appeal should be dismissed.