Judgment date: 15 December 2010
Zanner v Zanner  NSWCA 343
New South Wales Court of Appeal1
- An inexperienced or unlicensed driver still has a duty of care in controlling their vehicle.
- The scope of an inexperienced or unlicensed driver's duty of care will depend on the degree of their experience and the degree of care one would objectively expect of a driver of a similar age.
- A trial judge's finding of contributory negligence will only be disturbed on appeal where the previous finding was unreasonable or unjust.
- Contributory negligence should only be found to exceed 90% in rare cases where the risk created by the defendant is patently obvious and could have been avoided by the exercise of reasonable care on the plaintiff's part.
The claimant sustained serious injuries in a motor accident on 18 August 2006 as she was directing her 11-year old son who was parking a vehicle at her home. The son's foot slipped onto the accelerator causing the vehicle to collide with her. The son had some limited experience parking a different car, having done so with his father on 5 or 6 prior occasions.
The insurer denied liability upon the grounds that, due to his inexperience as a driver, the son did not owe any duty of care to the claimant; if there was a duty of care its scope or content was so limited that there was no breach; if there was a breach it was not the cause of the claimant's injuries; and finally, if there was a breach and there was causation the claimant was guilty of contributory negligence to the extent of 100%.
The trial judge found in favour of the claimant on the issue of liability, although he also found that the claimant was guilty of contributory negligence to a degree of 50%. The insurer appealed the determination in relation to both liability and contributory negligence.
Court of Appeal
The insurer relied on the High Court decision of Imbree v McNeilly2 that there may be circumstances in which a person who takes control of a motor car is so lacking in competence that the act of taking control is itself negligent and thus there is no duty of care, or voluntary assumption of risk, or a high degree of contributory negligence, or an absence of causation in relation to an injured person who permitted the driver to take control. The Court of Appeal distinguished this case from Imbree on its facts, namely that the son had some experience in performing the act, and found that the son did owe a duty of care.
Turning to the scope of the son's duty of care the Court of Appeal found:
"54 ... Given [the claimant's] knowledge of [the son] having driven his father's vehicle into or out of the carport without mishap, she was entitled to expect some small degree of driving competence on the part of her son, albeit of a basic and rudimentary kind."
"60 The act of negligence in the present case was the failure of the first appellant to keep his foot on the brake and to prevent it slipping onto the accelerator. That was not an activity whose importance would be beyond the understanding of an 11-year old."
In relation to causation the Court of Appeal considered 5D(1)(b) of the Civil Liability Act 2002. and whether, having regard to policy considerations, the scope of liability should extend to such an inexperienced driver. The Court found in favour of the claimant, stating:
"80 In my view the respondent's submission that the issue of policy that arises out of a case such as the present concerns the question of responsibility for the conduct and control of motor vehicles should be accepted. It was submitted that it would be a rare case indeed where a motor vehicle case attracted some other policy consideration, once factual causation was established, which would justify a denial of liability on the grounds of causation. Such a rare case may be one where the relevant harm is only remotely connected to the defendant's conduct."
Finally, the Court turned to the issue of the claimant's contributory negligence. The Court noted that a trial judge's finding of contributory negligence could only be disturbed if "the failure to exercise the discretion involved in the apportionment exercise properly was unreasonable or plainly unjust"3. In these circumstances, the Court disagreed with the earlier finding that the claimant and her son were equally culpable for the accident, particularly given that the claimant stood in the path of the vehicle while her son parked it. The Court overturned the previous finding and held that the claimant's contributory negligence was 80%. The Court further stated that a finding of more than 90% contributory negligence would be "very rare", and would require that "the risk created by the defendant is patently obvious and could have been avoided by the exercise of reasonable care on the plaintiff's part".
This case is significant in that it provides a thorough analysis of the present state of the law regarding negligence under the Motor Accidents Compensation Act 1999. Allsop P provides a discussion of the development of law in negligence over the last decade (paragraphs 1 to 12 of his judgment) which is useful in understanding the concepts which are presently applied by the Court in relation to duty of care, scope of duty and causation.
The decision also reinforces the legal concept that an inexperienced or unlicensed driver still owes a duty of care to other road users. However, the scope of that duty is commensurate to the driver's experience and age and insurers should take these factors into account when determining liability.
Finally, insurers should be aware that contributory negligence will only defeat a claim in full in rare circumstances which involve obvious risks which could be easily avoided by the claimant. Insurers should be wary of relying on findings of 100% contributory negligence in calculating their reserves, given the apparent infrequency of such a finding by Courts.
1 Allsop P; Tobias JA and Young JA
2  HCA 40
3 Mobbs v Kain  NSWCA 301
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