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Are you liable for the negligence of your designated driver? The
short answer is yes, if it is your car and you are a passenger!
Surprisingly, this dates back to horses and buggies, and
servants and Masters (Chandler v Broughton, 1832). Mr
Broughton's rig, driven by his servant crashed into a church,
with the court stating:
"Is there any case which
militates against this position; that if the owner is in the
carriage, sitting by the driver, the act of driving by the servant
is the act of the master? The reason is that the master has
immediate control over the servant."
Over 100 years later, the High Court in Soblusky v. Egan (1960)
103 CLR 215 considered a case where Mr Lewis was driving
Mr Egan's 1938 Ford to a meeting of the Royal Antediluvian Order of
Buffaloes. Mr "Soblusky who was sitting next to Lewis
asked him if he minded if he went to sleep". Mr Lewis ran
into a guide post while Mr Soblusky was having his nap.
The High Court, finding Mr Soblusky liable, held that:
"It means that the owner or
bailee being in possession of the vehicle and with full legal
authority to direct what is done with it appoints another to do the
manual work of managing it and to do this on his behalf in
circumstances where he can always assert his power of control. Thus
it means in point of law that he is driving by his
agent.
It appears quite immaterial that
Soblusky went to sleep. That meant no more than a complete
delegation to his agent during his unconsciousness. The principle
of the cases cited is simply that management of the vehicle is done
by the hands of another and is in fact and in law subject to
direction and control."
In another High Court decision Scott v Davis (2000) HCA
52 Justice Gummow, who was critical of the decision in
Soblusky, referred to English authorities that:
"...appear to introduce a
new type of agent, who is not an employee, nor an independent
contractor; rather, it is 'one whose job is not to make
contracts but to do such favours as driving cars for his temporary
principal'."
Justice McHugh commented that:
"Soblusky can fairly be seen
as a case of the 'owner' of a vehicle delegating a task to
the driver for the owner's purposes."
Generally, an employer
is liable for its employees' driving and a principal is
liable for its agents' driving. Additionally, if you are the
owner or bailee of the car, you are in the car at the time of the
accident and the driver was 'doing a favour and driving for
your purposes' then you could also be liable for damage caused
by the driver.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
