Precedent - Decisions of English superior courts - Court of Appeal - Authority in Australian courts - Persuasive only.

MASON, WILSON, DEANE AND DAWSON JJ.: This appeal from a decision of the Full Court of South Australia raises an important question of principle relating to the liability of the driver of a motor vehicle to a passenger in it. Shortly stated, that question is whether the duty of care owed by such a driver to a passenger under the common law of negligence invariably requires that the driver exercise the degree of skill which could reasonably be expected of an experienced and competent driver in the circumstances notwithstanding that a basic ingredient of the relationship between the particular driver and the particular passenger is their mutual knowledge that the driver is unqualified and lacks that skill.

2. Each of the driver and the passenger involved in the accident from which the present action arises is a Mrs. Cook. They are related by marriage. Mrs. Margaret Cook, who is the appellant, was the driver. She was not, and never had been, the holder of a driver's licence or a learner's permit and it was unlawful for her to be driving on a public road in South Australia (see s.74(1) of the Motor Vehicles Act 1959 (S.A.)). While she had a general knowledge of the various controls of a motor vehicle, she was, for practical purposes, quite inexperienced as a driver. This had been the subject of family teasing in the past and was well-known to Mrs. Irene Cook who is the respondent and was the injured passenger. Mrs. Irene Cook was the holder of a current driver's licence.

3. The bare facts of the accident are clear enough. Mrs. Margaret Cook drove the motor car into a concrete electricity post (a "stobie pole" in South Australia) by the side of the road and Mrs. Irene Cook sustained injuries in respect of which she brought an action for damages in the District Court of Adelaide. The only direct witnesses of the events leading up to the impact were the two women themselves. Their accounts conflicted in important respects. Where their respective accounts differed, the learned trial judge (his Honour Judge Lewis) believed Mrs. Margaret Cook (the appellant driver). It is her account of how she came to be driving the car and of the facts of the accident which must be accepted for the purposes of the appeal. We shall refer to Mrs. Margaret Cook (the driver) as "the appellant" and to Mrs. Irene Cook (the passenger) as "the respondent".

4. On the day of the accident, which occurred in suburban Adelaide, there was a small gathering at the respondent's home to celebrate the birthday of the respondent's daughter. In late afternoon, the respondent and the appellant set out to drive to a local fish shop (in Hanson Road, Woodville Gardens) to purchase some cooked food for an evening meal for themselves and the others at the house. The driveway of the house had been blocked by the appellant's husband's "company car" and, with his permission, the respondent drove that car rather than her own. As the respondent drove away from the house, the appellant told her that, on the following day, she intended to apply for a learner's permit, that is to say, permission for an unlicensed person to drive a car on a public street if accompanied by a qualified driver. She said that she planned to surprise the family with her learner's permit. The respondent stopped the car, got out, went around to the passenger's side and said to the appellant: "If you are going to drive you may as well start now". The appellant, not wishing to drive without a permit, replied: "I should wait, I think". The respondent told her not to be "stupid" and commenced to get in the passenger's side. The appellant then slid across the front seat into the driver's position and nervously commenced to drive. The learned trial judge found that "she was apprehensive and tentative in the execution of that driving and the making of decisions associated with it". The appellant drove the car along the street, through three intersections. She then said to the respondent that she was "pulling over when we get past this next corner". What then occurred was summarized by the learned trial judge as follows:

the fence and the car that was parked on the corner

and she put her foot on the accelerator because she

5. In the District Court, his Honour Judge Lewis held, as a matter of law, that the standard of care required of the appellant in the circumstances was "no more than that which might reasonably have been expected" of a driver who, like the appellant, was "almost totally inexperienced in the driving and management of motor vehicles". His Honour found that the appellant's fault "lay in inexperience and not in carelessness". Accordingly, he dismissed the respondent's action.

6. On appeal to the Full Court of the Supreme Court, there was disagreement between the members of the court about the appropriate standard of care. King C.J., relying largely upon the judgments of Latham C.J. and Dixon J. in The Insurance Commissioner v. Joyce [1948] HCA 17; (1948) 77 CLR 39, concluded that, in the "quite exceptional" circumstances of the case, the standard of care required of the appellant had been that reasonably to be expected not of a qualified and experienced driver but of a driver who was "almost totally devoid of driving skill and experience". His Honour was of the view that, on the facts as found by the trial judge, the accident had not been shown to have resulted from lack of care, as distinct from lack of skill, on the part of the appellant. That being so, he would have dismissed the appeal. In contrast, Matheson J. considered that the comments of Latham C.J. and of Dixon J. in Joyce's Case, upon which King C.J. relied, were dicta which were not binding upon the Full Court. His Honour considered that he should follow the views expressed by the majority of the English Court of Appeal in Nettleship v. Weston (1971) 2 QB 691 to the effect that the duty of care owed by a learner driver to an instructor passenger was the ordinary standard of care "measured objectively by the care to be expected of an experienced, skilled and careful driver" (Nettleship, at p.702). Obviously, the appellant had not observed, indeed she had plainly been incapable of observing, that ordinary standard of care. Having considered and rejected a defence of volenti non fit injuria, Matheson J. concluded that the present appellant was liable to the present respondent in damages but that the amount of damages should be reduced by seventy per cent by reason of the respondent's contributory negligence.

7. The third member of the Full Court, Johnston J., agreed with Matheson J. about the standard of care which the appellant had owed to the respondent. However, his Honour disagreed with Matheson J. in relation to the defence of volenti non fit injuria in that he considered that the doctrine embodied in that maxim applied in the circumstances of the case to the extent that the respondent "must be taken to have assumed voluntarily such risks as are inherent in being a passenger in a car driven by a person virtually devoid of experience in driving". That being so, the question of fact which Johnston J. eventually addressed corresponded with that which had been considered by the learned trial judge and by King C.J., namely, whether the appellant had been guilty of a breach of the standard of care which could reasonably be expected of a driver of her skill and experience. The evidence of the appellant, which had plainly been accepted by the learned trial judge, that, when she saw the parked car in her path, she had deliberately accelerated, led him to conclude that the appellant had been guilty of a breach of that modified standard of care. Like Matheson J., he held that the respondent's entitlement to damages should be reduced by seventy per cent by reason of her contributory negligence. In the result, the Full Court ordered that judgment be entered for the respondent for thirty per cent of her damages to be assessed. The present appeal to this Court is brought by the appellant against that order. The respondent has not appealed against the decision that her damages be reduced by seventy per cent by reason of her contributory negligence.

8. For our part, we accept that a relevant duty of care will arise under the common law of negligence only in a case where the requirement of a relationship of proximity between the plaintiff and the defendant is satisfied (see, generally, Jaensch v. Coffey [1984] HCA 52; (1984) 58 ALJR 426, at pp 428-429, 441-442; [1984] HCA 52; 54 ALR 417, at pp 419-421, 443-445; Sutherland Shire Council v. Heyman [1985] HCA 41; (1985) 59 ALJR 564, at pp 570, 579, 583, 594-595; [1985] HCA 41; 60 ALR 1, at pp 13-14, 29, 36, 53-56; Stevens v. Brodribb [1986] HCA 1; (1986) 60 ALJR 194, at pp 199, 208-209; [1986] HCA 1; 63 ALR 513, at pp 521-522, 536-538). As an overriding control of the test of reasonable foreseeability, that requirement of proximity of relationship can be traced to the judgments of Lord Esher M.R. and A.L. Smith L.J. in Le Lievre v. Gould (1893) 1 QB 491 (see Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562, at p 581). It constitutes the general determinant of the categories of case in which the common law of negligence recognizes the existence of a duty to take reasonable care to avoid a reasonably foreseeable and real risk of injury to another.

9. A concomitant of the concern of the law of negligence to identify the categories, rather than the wilderness of single instances, of cases in which a duty of care will arise is that the measure for determining what constitutes reasonable care is an objective and impersonal one. It is "the standard of the reasonable man" (per Fullagar J., Commissioner for Railways (N.S.W.) v. Anderson [1961] HCA 38; (1961) 105 CLR 42, at p 56). That is to say, what is required is "the conduct that would be expected of a reasonably careful man in such circumstances" (per Windeyer J., Voli v. Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74, at p 89). The more detailed definition of the objective standard of care for the purposes of a particular category of case must necessarily depend upon the identification of the relationship of proximity which is the touchstone and control of the relevant category. Thus, to borrow the example cited by Latham C.J. in Joyce's Case (at p.46), if a person were deliberately to agree to allow a blacksmith to seek to mend his watch, the blacksmith would be required to act as a reasonable person should in the circumstances, though he would not be subject to the high standard of care which would be required of a professional watchmaker. The reason for that is not that the objective general standard required by the law of negligence is abandoned. It is that the more detailed definition of the content of that objective standard will depend upon the relevant relationship of proximity from which it flows and into which the reasonable person of the law of negligence must be projected; it "is because that relation may vary that the standard of duty or of care is not necessarily the same in every case" (per Dixon J., Joyce's Case, at p.56).

10. In the ordinary action in negligence where the plaintiff is a passenger who has been injured in a motor vehicle driven by the defendant, the relevant relationship of proximity is simply that of driver and passenger and the category of case is the general one which reflects that relationship. 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 standardized 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. It would, to take an extreme example, affront the standards of the reasonable man of the law of negligence to define the duty of care which a mentally retarded and completely unqualified and inexperienced person owed to a professional pilot who had persuaded him or her to attempt to pilot an aircraft in which they were both travelling as being the skill and care that are reasonably to be expected of a qualified and experienced pilot. The point can also be illustrated by reference to a more mundane example which is closer to the circumstances of the present case, namely, that of a professional driving instructor and a pupil having his or her first driving lesson. It would be contrary to common sense and the concept of what is reasonable in the circumstances (considerations which are basic to the common law of negligence) to measure the content of the duty of each of such an instructor and such a pupil by the standard to be expected of the ordinary experienced, skilled and careful driver, with the result that the degree of skill required of each of them toward the other was the same. Where such special and exceptional facts transform the relevant relationship, questions of the requisite proximity of relationship and of the standard of any duty of care must be determined by reference to the more precisely confined category into which the particular relationship falls. Assuming that the requirement of proximity remains satisfied, the standard of care, while remaining an objective one, must be adjusted to the exigencies of the relevant relationship in that it will be the degree of care and skill reasonably to be expected of the hypothetical reasonable person of the law of negligence projected into that more precisely confined category of case. The point may be illustrated by reference to the abovementioned example of a professional driving instructor and a pupil having his first lesson. In relation to other users of the highway, the duty of care of both instructor and pupil will ordinarily fall to be measured by the same objective standard since the relevant relationship will be the ordinary one between a driver and another user of the highway. As between themselves, however, it would be to state a half-truth to say that the relationship was, if the pupil was driving, that of driver and passenger. The special circumstances of such a case remove the relationship into a distinct category or class which, while possessing the requisite degree of proximity, could not rationally be seen as giving rise to a duty to drive with the skill reasonably to be expected of a competent and experienced driver. Indeed, it is the very absence of that skill which lies at the heart of the special relationship between the driving instructor and his pupil. In such a case, the standard of care which arises from the relationship of pupil and instructor is that which is reasonably to be expected of an unqualified and inexperienced driver in the circumstances in which the pupil is placed. The standard of care remains an objective one. It is, however, adjusted to fit the special relationship under which it arises.

11. What has been written above accords with, and seems to us to flow from, general principle. It also accords with the clear trend of authority in this country to the effect that special and exceptional circumstances can transform the ordinary relationship of driver and passenger into a special one with the result that the hypothetical reasonable person of the law of negligence can no longer be credited with the degree of skill and experience that would otherwise be attributed to him or her. Thus, in Joyce's Case, Dixon J., having pointed out (at p.56) that a passenger comes into "a more particular relation with the driver of (a) car" which may vary, expressed (at p.59) his preference for the view that the position of the voluntary passenger depends (at p.57):

"upon a relation which by accepting a place in the

conveyance he sets up between himself and the

person responsible for its management. 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."

A similar view was expressed by Latham C.J. in Joyce's Case (at pp.45-46). This approach of Dixon J. and Latham C.J. was subsequently accepted by Webb J. in Roggenkamp v. Bennett [1950] HCA 23; (1950) 80 CLR 292, at p 303 and has been applied in subsequent cases in State Supreme Courts (see, e.g., Chang v. Chang (1973) 1 NSWLR 708, at p 713; and the extract from the judgment of Bray C.J. in the unreported case of Netherwood v. Sebastyan quoted by Sangster J. in Ranieri v. Ranieri (1973) 7 SASR 418, at p 429).

12. More detailed reference should be made at this stage to Nettleship v. Weston. In that case, a majority of the English Court of Appeal rejected the approach of Dixon J. in Joyce. The rationale of Lord Denning M.R.'s conclusion that an inexperienced learner driver owes to his or her instructor the degree of skill to be expected of an experienced, skilled and careful driver appears to have been expressed in the following comments from his judgment (at p.700):

"But the injured person is only able to recover if

the driver is liable in law. So the judges see to

it that he is liable, unless he can prove care and

skill of a high standard: see The Merchant

Prince (1892) P 179 and Henderson v. Henry E.

Jenkins & Sons (1970) AC 282. Thus we are, in

this branch of the law, moving away from the

concept: 'No liability without fault.' We are

beginning to apply the test: 'On whom should the

risk fall?' Morally the learner driver is not at

fault; but legally she is liable to be because she

is insured and the risk should fall on her."

It is debatable whether the imposition of legal liability upon the learner driver would advance the purposes of the social policy it was intended to serve in a case where the learner driver himself sustained injury as a consequence of the instructor presuming that the learner driver possessed the degree of experience and skill which the law falsely attributed to him. Be that as it may, the approach which those comments depict is not one which should be adopted by courts in this country where it has long been accepted that it is for the legislature, and not the courts, to decide whether considerations of social policy make it desirable that the traditional standards of the law of negligence should be abandoned in favour of a system of liability without fault.

13. The other majority judgment in Nettleship was that of Megaw L.J. His Lordship's view (at p.707) was that "the theoretical attraction" of Sir Owen Dixon's exposition of principle in Joyce "should yield to practical considerations". The "practical considerations" to which Megaw L.J. referred were the difficulties which he saw as flowing from what he described as "this doctrine of varying standards". With due respect, however, it seems to us that his Lordship's fears of practical disadvantages - "resulting unpredictability, uncertainty and, indeed, impossibility of arriving at fair and consistent decisions" - resulted from his mistaken impression that Dixon J. in Joyce was advocating some wholesale abandonment of the ordinary objective duty of care to be expected of a driver. In truth, Dixon J's view involved no abandonment of the objective nature of the standard provided by the reasonable person of the law of negligence. It merely involved the recognition that exceptional circumstances could take the relationship of proximity between a driver and a passenger into a special category in which what could reasonably be expected of the hypothetical reasonable person must necessarily be governed by the nature of the relationships constituting that category. Nor did it involve any wholesale abandonment of the ordinary driver-passenger category in favour of a multitude of special categories. To the contrary, experience in this country has shown that, as Dixon J. no doubt anticipated, the cases in which the particular facts will be such as to take the relationship between driver and passenger into a special category are rare. These points were forcefully made by Salmon L.J. in Nettleship (at p.704) in explaining his general agreement with the view expounded by Dixon J. in Joyce:

"The duty of care springs from relationship.

The special relationship which the passenger has

created by accepting a lift in the circumstances

postulated surely cannot entitle him to expect the

driver to discharge a duty of care or skill which

ex hypothesi the passenger knows the driver is

incapable of discharging.

I should like to make it plain that I am not

suggesting that whenever a passenger accepts a lift

knowing that the driver has had a few drinks, this

displaces the prima facie duty ordinarily resting

on a driver. ... Indeed, Sir Owen Dixon dissented in

Joyce's case, because he did not agree that the

evidence was capable of establishing that the

plaintiff passenger knew that the driver was so

drunk as to be incapable of exercising ordinary

care and skill. In practice it would be rare

indeed that such a defence could be established."

14. 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. It is then that Lord Atkin's "general conception" of proximity operates "to open up" a special and distinct category of cases: "the time comes when the cell divides" (per Lord Devlin, Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1963] UKHL 4; (1964) AC 465, at pp 524-525). In that regard, we agree with the view expressed by Salmon L.J. in Nettleship (at pp.703-704) and by King C.J. in the Full Supreme Court that, at least in the ordinary case, the fact that it is known that a driver has some physical disability, is of below average expertise or is commonly careless will not, even if known to the passenger, suffice to create a special relationship of the type which would confine the ordinary duty of care. Careful drivers can compensate for physical disabilities or lack of expertise. Ordinarily careless drivers can take care. It would, in any event, be to ignore the objective standard set by the law of negligence to adjust the duty of care in the particular case by reference to the physical characteristics and expertise or the usual carefulness or otherwise of the particular driver. It is only when special and exceptional circumstances clearly transform the relationship between a particular driver and a particular passenger into a special or different class or category of relationship that the case will be one in which the duty of care owed by the particular driver to the particular passenger will be either expanded or confined by reference to the objective standard of skill or care which is reasonably to be expected of a driver to a passenger in the category of a case where that special or different relationship exists. The onus of establishing the existence of facts giving rise to a relationship of such a special or different category under which it would be unreasonable to fix the duty of care owed by the driver by reference to the standard of skill and care reasonably to be expected of a qualified and competent driver will lie on the party who asserts it.

15. On the findings of the learned trial judge, the relationship between the appellant and the respondent in the present case was that of a driver of a motor vehicle who was quite inexperienced and had not even obtained a learner's permit and a passenger who was conscious of that lack of experience and lawful status as a driver. The respondent was not an unwilling passenger in the car. To the contrary, it was at her instigation that the appellant drove the vehicle. Indeed, at the time when the accident occurred, the relationship between the respondent and the appellant had at least some similarity with that of instructor and pupil. Thus, the respondent's own evidence at the trial and in her statement to the police discloses that, in the moments leading up to the accident: she instructed the appellant to turn left into Eton Street; she watched the appellant as the appellant "looked down for the indicator lever" and "when (the appellant) and (the respondent) looked up (they) were heading straight at the stobie pole"; she formed the view that the appellant had "misjudged the corner" and said to the appellant that "there was a car parked on the side of the road"; and she instructed the appellant to "watch out for the car".

16. In these circumstances, the appellant's known incompetence and inexperience as a driver was a controlling element of the relationship of proximity between the parties. That special element of the relationship took it out of the ordinary relationship between a driver and passenger into a special category of relationship between a driver who is known to be quite unskilled and inexperienced and a passenger who has voluntarily undertaken to supervise his or her driving efforts. The standard of the duty of care which arose from that distinct relationship of proximity was that which could reasonably be expected of an unqualified and inexperienced driver (but with some knowledge of the controls of a motor vehicle) in the situation in which the appellant was placed when the respondent instructed her to turn left into Eton Street. Actions which are fairly to be seen as the result of that inexperience and lack of qualification rather than as having been caused by superimposed or independent carelessness did not, of themselves, constitute a breach of the duty of care which the appellant owed to the respondent.

17. Were it not for one aspect of the facts in the present case, we would be in unqualified agreement with the conclusion reached by the learned trial judge that, on the facts as found by him, the appellant was not guilty of a breach of the duty of care which she owed to the respondent. The fact that she negotiated the turn into Eton Street so inexpertly that she was in danger of hitting the parked car obviously was the result of her inexperience as a driver rather than the result of any superimposed or independent carelessness on her part. The fact that in manoeuvring to avoid the parked car she steered the vehicle she was driving into the stobie pole does not, of itself, lead to a different conclusion. Nor would the fact that she had put her foot on the accelerator if that had, for example, resulted from her mistaking it for the brake. The aspect of the facts which has caused us difficulty is that which Johnston J. saw as being of critical significance in the Full Court of the Supreme Court, namely, that the appellant, having seen the need to avoid the parked car, deliberately accelerated. According to her own evidence:

"I thought I would hit it (i.e. the parked car) if

I didn't put speed on and go up between the car and

the fence, so I concentrated on getting between the

fence and the car that was parked, so I put my foot

on the accelerator because I was going fairly slow,

and I didn't see the stobie pole until we hit it.

In fact I don't remember a stobie pole until we hit

it."

18. Accepting the findings of primary fact made by the learned trial judge, this Court is at no real disadvantage in the present case in assessing the appellant's extraordinary action in accelerating because she thought she would hit the parked car if she "didn't put speed on". With some hesitation, we have come to the same conclusion as that which was reached by Johnston J. That is that the appellant's action in deliberately accelerating so as to avoid an object in the path of the vehicle she was driving involved, in the absence of any suggestion of skidding and in circumstances where she was deliberately steering the car off the roadway, an element of carelessness over and above what could be attributed merely to inexperience. It has not been disputed that that acceleration was a cause of the accident and was largely responsible for the severity of the impact when the vehicle came into contact with the stobie pole and the respondent was thrown against the windscreen. Any such superimposed carelessness on the part of the appellant constituted a breach of the duty of care which she owed to the respondent. That being so, it seems to us that the conclusion reached by the majority of the Full Court of the Supreme Court was correct on the particular facts of the case notwithstanding that, on the questions of law involved, we agree with the approach adopted by King C.J. in his dissenting judgment. It is unnecessary to consider the defence of volenti non fit injuria which was raised on behalf of the appellant since it was rightly conceded on her behalf that, on the facts of the case, that defence could not extend to exonerate the appellant from a failure to observe the standard of care which might reasonably be expected of an unqualified and inexperienced driver.

19. There is one further matter which should be mentioned. In the Full Court of the Supreme Court Matheson J., having expressed the view that the comments of Latham C.J. and Dixon J. in relation to the reduced content of the duty of care were "only dicta", regarded himself as constrained to accept the reasoning of the majority of the English Court of Appeal in Nettleship v. Weston. In support of that approach, his Honour referred to a number of statements in cases in this and other courts in which it has been said that in the absence of controlling authority a State Supreme Court, including a "Supreme Court on appeal", should, as a general rule, follow decisions of the English Court of Appeal (see, e.g., Public Transport Commission (N.S.W.) v. J. Murray-More (N.S.W.) Pty. Ltd. [1975] HCA 28; (1975) 132 CLR 336, at pp 341, 349; Viro v. The Queen [1978] HCA 9; (1978) 141 CLR 88, at p 121). Whatever may have been the justification for such statements in times when the Judicial Committee of the Privy Council was the ultimate court of appeal or one of the ultimate courts of appeal for this country, those statements should no longer be seen as binding upon Australian courts. The history of this country and of the common law makes it inevitable and desirable that the courts of this country will continue to obtain assistance and guidance from the learning and reasoning of United Kingdom courts just as Australian courts benefit from the learning and reasoning of other great common law courts. Subject, perhaps, to the special position of decisions of the House of Lords given in the period in which appeals lay from this country to the Privy Council, the precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning.

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 [1931] UKHL 3; (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] HCA 52; (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] UKHL 2; (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?

2. 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] EngR 424; (1837) 3 Bing(N.C.) 468, at p 475 [1837] EngR 424; (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] HCA 13; (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.

3. That was not the view of Latham C.J. and Dixon J. in The Insurance Commissioner v. Joyce [1948] HCA 17; (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.

4. 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] HCA 39; (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.

5. 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."

6. 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.

7. 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.

8. 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.