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What happens when a learner driver causes injury to their supervising passenger?

Historically, the leading case on the matter was Cook v Cook decided in 1986. This case provided for a reduced standard of care owed by inexperienced and unqualified drivers to their supervisor. Effectively, the learner owed a higher level of responsibility to all other road users to ‘take reasonable care to avoid injury to others’. However the supervisor was not afforded the same protection. The lower standard owed to the supervising driver was no more than the ‘ordinary caution expected of an inexperienced driver’.

Cook v Cook was overturned in 2008 when the High Court handed down their decision in Imbree v McNeilly (Imbree).

In short, this decision held that an unqualified and inexperienced driver is subject to the same objective standard of reasonable care that is required of a qualified and experienced driver. Therefore, the fact that an injured road user (including a front-seat supervising licensed driver) is aware of the driver’s lack of qualification and inexperience is now of no consequence.

The decision in Imbree reflects the fact that it is unlikely that those who patiently and kindly agree to coach a learner driver are aware that in taking on that role they were subjecting themselves to prejudicial treatment as compared with other road users. It provides that all those injured receive equal access to compensation for injuries incurred by learner drivers.

Contributory Negligence – Reducing the Award

The experience or otherwise of a driver does not directly affect the standard of care in a determination of liability for negligent driving – but it remains of upmost relevance to the amount an injured Plaintiff may recover. The principle is that the supervisor has contributed to the harm they have suffered as a result of their own negligence. For example, in Imbree damages were reduced by 30% for contributory negligence due to a failure of the supervising passenger to provide proper instruction.

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:

This section absolutely mirrors the decision in Imbree.

It states:

(1) For the purposes of proceedings for damages payable in relation to a motor accident, the standard of care required of the driver of a motor vehicle who owes another person a duty of care is not diminished or otherwise affected by any actual or imputed knowledge of the other person as to the skill or experience of the driver as the driver of a motor vehicle.

(2) This section does not affect any determination of whether a person who has suffered harm has been contributorily negligent in failing to take precautions against risk of harm, or any determination as to voluntary assumption of risk by such a person

What does this all mean to the general standard of learner driver liability?

In summary, Imbree created a less privileged position for learner defendants and this was legislated for in NSW. A Plaintiff’s knowledge of the driver’s inexperience does not disentitle them to compensation. However, it is an issue of contributory negligence and does reduce the monetary entitlement.

This article was written by the Kells Criminal Law Team.