High Court changes position on standard of care of learner drivers

Since the High Court decision of Cook v Cook (1986) 162 CLR 376, a person who voluntarily undertakes to instruct a learner driver of a motor vehicle is owed a lower standard of care than that owed to other road users. The standard of care was still expressed to be objective; however, it took into account the inexperience of the learner driver. Therefore, a person instructing a learner driver was owed a duty of care the standard being that of a reasonable learner driver. This ‘special relationship’ was said to exist because of the passenger’s knowledge of the driver’s inexperience and lack of skill. On 28 August 2008 the High Court handed down its decision in Imbree v McNeilly [2008] HCA 40, overruling Cook v Cook.

Duty of care for mental harm suffered by rescuers

In Wicks v State Rail Authority NSW; Sheehan v State Rail Authority NSW [2010] HCA 22 (16 June 2010) the duty of care owed to rescuers, who were police officers, at a train derailment, was considered in conjunction with the interpretation of the Civil Liability Act (NSW) 2002.

A duty of care

Mass production of PhD training compromises graduate quality. As PhD quality becomes more stratified, industry will increasingly turn to quality-branded institutions and programs when distinguishing among job candidates.

A lawyer's duty of care : beware the failure to advise of contingencies and foreseeable risks

It is trite law that a lawyer owes their client a duty of care requiring the lawyer to take reasonable steps to avoid their client suffering foreseeable economiic loss: Hawkins v Clayton. In the context of a property transaction this will include a duty to warn the client of anything that is unusual or anything which may affect the client obtaining the full benefit of the contract entered into: Macindoe v Parbery.

Court finds solicitor in breach of fiduciary duty owed to client but loss not caused by the breach

A solicitor owes fiduciary obligations to his or her client including the obligations of loyalty and disclosure. The Court of Appeal in Mantonella Pty Ltd v Thompson (2009) 255 ALR 367; [2009] QCA 80; BC200902311 recently considered when the fiduciary duty owed by a solicitor to a client is breached and the consequent liability of the solicitor...

Vulnerability held not to be pre-requisite for establishing a duty of care in claims of pure economic Loss

Case note Apache Energy Ltd v Alcoa of Australia Ltd (No 2) [2013] In 2011, headlines were made when Alcoa sued Apache Energy and its partners for $158 million, a loss it claimed was a consequence of Apache Energy failing to adequately inspect and maintain the gas pipelines that supplied the gas used by Alcoa in its business. As the loss was not a consequence of any property damage or injury to Alcoa, the loss is characterised as pure economic loss...

Dismantling worker categories: the primary duty of care, and worker consultation, participation and representation, in the model Work Health and Safety Bill 2009

Late in 2009, the Australian Workplace Relations Ministers' Council endorsed the model Work Health and Safety Bill 2009, which is to be adopted by all Australian governments (federal, state and territory) from 01 January 2012. This paper describes and analyses two key sets of provisions in this model legislation. The first establishes a 'primary' duty of care imposed not on 'employers' but on persons conducting a business or undertaking, and owed to all kinds of workers engaged, directed or influenced by the person conducting the business or undertaking. The second encompasses broad duties on all persons conducting a business or undertaking to consult with workers who carry out work for the business or undertaking and who are directly affected by a work health and safety issue, and to facilitate the election of health and safety representatives representing all workers who carry out work for the business or undertaking. These provisions arguably make a significant contribution to solving a problem faced by occupational safety and health regulators around the world – modifying regulation to accommodate all forms of precarious work.

Once more into the mire, dear friends : determining the existence of a duty of care in negligence

There were signs in the 1997 High Court decision in Hill v Van Erp that the different members of the bench were beginning to move in the same direction when it came to the tort equivalent of the search for the Holy Grail, a common approach to the determination of the existence of a duty of care in negligence. However, the court's subsequent decision in Perre v Apand signaled a slide back to uncertainty with the seven judges favouring five different approaches. This Note examines those five approaches in the search for guidance for those at the "coalface" - litigants, their legal advisers and trial judges.

Vulnerability, insurance and policy: The learner driver's standard of care

In Cook v Cook the Australian High Court held that the standard of reasonable care owed by a learner driver to an instructor, conscious of the driver’s lack of experience, was lower than that owed to other passengers and road users. Recently, in Imbree v McNeilly, the High Court declined to follow this principle, concluding that the driver’s status or relationship with the claimant should no longer influence or alter the standard of care owed. The decision therefore provides an opportunity to re-examine the rationale and policy behind current jurisprudence governing the standard of care owed by learner drivers. In doing so, this article considers the principles relevant to determining the standard and Imbree’s implications for other areas of tort law and claimant v defendant relationships. It argues that Imbree was influenced by changing judicial perceptions concerning the vulnerability of driving instructors and the relevance of insurance to tortious liability.

Spaces of care in the third sector : Understanding the effects of professionalization

Increasingly the health and welfare needs of individuals and communities are being met by third sector, or not-for-profit, organizations. Since the 1980s third sector organizations have been subject to significant, sector-wide changes, such as the development of contractual funding and an increasing need to collaborate with governments and other sectors. In particular, the processes of ‘professionalization’ and ‘bureaucratization’ have received significant attention and are now well documented in third sector literature. These processes are often understood to create barriers between organizations and their community groups and neutralize alternative forms of service provision. In this article we provide a case study of an Australian third sector organization undergoing professionalization. The case study draws on ethnographic and qualitative interviews with staff and volunteers at a health-based third sector organization involved in service provision to marginalized community groups. We examine how professionalization alters organizational spaces and dynamics and conclude that professionalized third sector spaces may still be ‘community’ spaces where individuals may give and receive care and services. Moreover, we suggest that these community spaces hold potential for resisting the neutralizing effects of contracting.