Zanner v Zanner  NSWCA 343
The plaintiff was injured when her 11 year old son, the first defendant, attempted to drive her vehicle into the family carport. The first defendant was driving the vehicle with the plaintiff's permission, and with the plaintiff standing two metres in front of the vehicle, directing the first defendant into the carport. The first defendant's foot slipped from the brake and onto the accelerator, prior to the vehicle striking the plaintiff, causing crush injuries and burns.
The plaintiff brought an action against the first defendant by his next friend (the first defendant's father who was also the second defendant as owner of the vehicle). The first defendant denied liability on the grounds that he did not owe a duty of care to the plaintiff.
First instance decision
The first defendant gave evidence that prior to the motor vehicle accident he had driven his father's vehicle four or five times in or out of the carport, although he had never driven the plaintiff's vehicle before the accident. Apart from one of those occasions, the first defendant's father had been in the passenger seat of the vehicle guiding him. It was accepted that the plaintiff had seen the first defendant driving his father's car in and out of the carport on previous occasions and she had been a passenger in the front seat with the first defendant on one of those occasions.
The primary judge considered that the plaintiff 'was entitled to expect that the first defendant would display a minimal degree of competence in driving an automatic car at a very slow speed in a forward direction for a distance of about three to four metres into the family carport'. His Honour found that there was a duty of care owed by the first defendant to take reasonable care in edging slowly into the carport and that the plaintiff was entitled to expect that the first defendant's foot would not slip from the brake to the accelerator.
The fact that the first defendant's foot slipped constituted a breach of duty of care.
The plaintiff had contributed to her injuries by allowing the first defendant to take control of the vehicle and in standing in front of the vehicle which His Honour assessed at 50%.
On appeal, the first defendant submitted that he did not owe a duty of care to the plaintiff as he was 'so obviously lacking in competence and experience that his act in taking control of the vehicle was itself plainly negligent'.
In support of that submission, the defendants relied upon the passage in the judgment of Gleeson CJ in Imbree v McNeilly, where His Honour stated 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...According to the circumstances, it would mean that there is no duty of care, or voluntary assumption of risk, or a high degree of contributory negligence, or an absence of causation'.
As it was the plaintiff who had permitted her son to take control of the vehicle – an act which was of itself clearly negligent – the plaintiff could not then have the benefit of a duty of care.
The defendants also submitted that the first defendant's error in permitting his foot to slip from the brake to the accelerator was a foreseeable risk, given the first defendant's age and lack of experience. Therefore the plaintiff had 'no reasonable expectation that the [first defendant] would be capable of driving the vehicle safely or sensibly'.
NSW Court of Appeal
Tobias JA delivered the leading judgment. In considering the first defendant's (appellant's) submission, His Honour noted that he had successfully performed the manoeuvre in his father's vehicle five or six times to the plaintiff's knowledge. There was no reason to believe that the first defendant would be unable to perform that same manoeuvre on the plaintiff's vehicle with the same outcome. His Honour considered that whilst there was a real possibility and therefore a foreseeable risk of the first defendant's foot slipping from the brake to the accelerator, it was not an inevitable risk. It was held that the primary judge was correct in finding that the first defendant owed a duty of care to the plaintiff.
Having determined that there was a duty of care owed by the first defendant to the plaintiff, the question then considered by the court of appeal was the scope and content of the first defendant's duty of care.
It was submitted by the first defendant that when properly attenuated, the standard of care owed by the first defendant should be so reduced that there can be no breach, because what had happened was exactly what one would expect to have happened in the circumstances.
In determining the scope of the first defendant's liability, the court considered section 5D(4) of the Civil Liability Act 2002, which states that 'the court is to consider (among other things) whether or not and why responsibility for the harm should be imposed on the negligent party'.
His Honour rejected the first defendant's submission, noting that the act of negligence in the present case 'was the failure of the first defendant to keep his foot on the brake and to prevent it from slipping onto the accelerator'. In His Honour's opinion, it was not unreasonable to expect that an 11 year old, who had successfully manoeuvred his father's vehicle in and out of the carport on previous occasions, would understand the purpose of the brake and the importance of keeping his foot on the brake in order to stop the car from moving forward.
Therefore His Honour rejected the first defendant's submission that the first defendant was not in breach of any relevant standard of care.
His Honour did find that the primary judge had erred in finding that the plaintiff was guilty of contributory negligence of only 50%. His Honour considered that the plaintiff had unnecessarily and inappropriately 'placed herself in significant danger, particularly by standing in front of the vehicle' and therefore had contributed to her injuries to the extent of 80%.
Zanner confirms that, in cases where a young defendant has some (albeit little) driving experience, a plaintiff may still be afforded a duty of care although the standard of care owed by a defendant will be dependent upon the defendant's age, understanding and level of experience.
A defendant's breach of duty of care does not however preclude a court from appropriately apportioning responsibility between the parties via contributory negligence. This case supports the current position that in circumstances where a plaintiff significantly contributes to his / her own demise, the court is likely to assess contributory negligence in the order of 70- 80%.
With the High Court decision in Imbree having done away with the earlier principle that arose out of the High Court decision in Cook v Cook, it is hard to argue that the finding of negligence was not a reasonable application of the current law. That said, some readers will no doubt be surprised by the potential of a factual scenario such as this to give rise to a successful claim. Insurers need to be aware of the potential for a greater number of claims involving inexperienced drivers to arise, in light of the Imbree decision. For further information please contact:
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