Lloyd v Ryan Borg by his Tutor NSW Trustee and Guardian

The appeal concerned the liability of the applicant, Mr Lloyd, for the negligence of his de facto wife, who was driving his vehicle at the time of an accident. The respondent, Mr Ryan Borg, was a passenger in the vehicle and sustained injuries. The primary judge had found Mr Lloyd vicariously liable for the negligent driving of his de facto wife. The appeal was heard in the Court of Appeal of New South Wales by Barrett, Gleeson and Leeming JJA.

The central legal issue before the Court of Appeal was whether Mr Lloyd, as the owner of the vehicle, was vicariously liable for the negligent driving of his de facto wife, notwithstanding that he was not present at the time of the accident and was unaware of her use of the vehicle. This required the court to consider the principles of vicarious liability in the context of a vehicle owner who has permitted another person to drive their vehicle, and whether such permission, in the absence of the owner's presence or knowledge of the specific use, was sufficient to establish vicarious liability.

The Court of Appeal allowed the appeal, setting aside the primary judge's orders. The court reasoned that the principles established in cases such as *Soblusky v Egan* and *Scott v Davis* did not support the imposition of vicarious liability on the owner of a vehicle in circumstances where the driver was not acting as the owner's agent or servant, and the owner had no knowledge of or control over the use of the vehicle at the time of the negligent act. The court found that Mr Lloyd had not authorised or permitted the use of his vehicle by his de facto wife in a manner that would render him vicariously liable for her negligence.

Consequently, the Court of Appeal entered judgment for the defendant (Mr Lloyd) against the plaintiff (Mr Borg) in the proceedings below, and ordered that Mr Borg pay Mr Lloyd's costs of those proceedings. The court also ordered that Mr Borg pay Mr Lloyd's costs of the appeal.