Zanner v Zanner

Case •

[2010] NSWCA 343

•

15 December 2010

No judgment structure available for this case.

New South Wales


Court of Appeal


CITATION: Zanner v Zanner [2010] NSWCA 343
HEARING DATE(S): 25 October 2010
 
JUDGMENT DATE: 
15 December 2010
JUDGMENT OF: Allsop P at 1; Tobias JA at 14; Young JA at 108
DECISION: (a) Appeal allowed in part.
(b) Set aside the verdict and judgment of the District Court of 27 November 2009 in favour of the respondent against the appellants in the sum of $350,000 and substitute therefor a verdict and judgment for the respondent against the appellants in the sum of $140,000.
(c) The appellants to pay 80% of the respondent’s costs of the appeal but to have a certificate under the Suitor’s Fund Act 1951 if otherwise qualified.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
CATCHWORDS: TORTS – negligence – breach of duty – motor vehicle accident – whether scope or content of duty so limited that no breach – first appellant owed respondent duty of care limited to manoeuvring vehicle into carport for three or four metres – first appellant was negligent in failing to keep his foot on brake and prevent it slipping onto accelerator - TORTS – negligence – causation – motor vehicle accident – “factual causation” test imposed by s 5D(1)(a) CLA satisfied – whether “scope of liability” test for causation imposed by s 5D(1)(b) CLA satisfied – no reason why responsibility for harm to respondent should not be imposed upon first appellant - TORTS – negligence – contributory negligence – motor vehicle accident – whether just and equitable to reduce respondent’s damages by 100% pursuant to s 5S CLA – whether apportionment of 50/50 was manifestly inadequate – culpability and causal potency not equal - TORTS – negligence – duty of care – motor vehicle accident – driver of motor vehicle of any age owes duty of care to someone in position of respondent
LEGISLATION CITED: Civil Liability Act 2002
Motor Accidents Compensation Act 1999
Road Transport (Driver Licensing) Act 1998
CASES CITED: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Chappel v Hart (1998) 195 CLR 232
Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134
Cook v Cook (1986) 162 CLR 376
Elayoubi v Zipser [2008] NSWCA 335
Graham v Hall [2006] NSWCA 208; (2006) 67 NSWLR 135
Harvey v PD [2004] NSWCA 97; (2004) 59 NSWLR 639
Henville v Walker [2001] HCA 52; (2001) 206 CLR 459
Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510
Insurance Commissioner v Joyce (1948) 77 CLR 39
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Mackenzie v The Nominal Defendant [2005] NSWCA 180; (2005) 43 MVR 315
March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
McHale v Watson (1966) 115 CLR 199
Mobbs v Kain [2009] NSWCA 301
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Tambree v Travel Compensation Fund [2004] NSWCA 24; (2004) Aust Contract Reports 90-195
Travel Compensation Fund v Tambree t/as Tambree and Associates [2005] HCA 69; (2005) 224 CLR 627
Woolworths Limited v Strong [2010] NSWCA 282
Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25
TEXTS CITED: Books and articles:
D Villa, Annotated Civil Liability Act 2002 (NSW), (2004) Lawbook Co
H L A Hart and A M Honoré, Causation in the Law, 2nd ed (1985) Clarendon
J Stapleton, Cause-in-Fact and the Scope of Liability for Consequences, (2003) 119 Law Quarterly Review 388
J Stapleton, Legal Cause: Cause-in-Fact and the Scope of Liability for Consequences, (2001) 54 Vanderbilt Law Review 941
Other publications:
Commonwealth, Review Panel, Review of the Law of Negligence: Final Report (“Ipp Report”), (2002)
PARTIES: Lukas Kevin Zanner by his next friend Kevin Kennelly
Kevin Kennelly
Kathleen Zanner
FILE NUMBER(S): CA 2009/324923
COUNSEL: A: Mr K P Rewell SC
R: Mr D Campbell SC / Mr D Toomey
SOLICITORS: A: Sparke Helmore, Newcastle
R: Beston Macken McManis, Sydney
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 2008/3325
LOWER COURT JUDICIAL OFFICER: Armitage DCJ
LOWER COURT DATE OF DECISION: 27 November 2011






                          CA 2009/324923
                          DC 2008/3325

                          ALLSOP P
                          TOBIAS JA
                          YOUNG JA

                          Wednesday 15 December 2010
LUKAS KEVIN ZANNER & ANOR v KATHLEEN ZANNER
Judgment

1 ALLSOP P: I have read the reasons of Tobias JA in draft. I agree with the orders proposed by his Honour and with his reasons, subject to the following comments on the question of the Civil Liability Act 2002 (NSW) (the “Act”), s 5D.

2 From the terms of the Act, there can be no doubt that s 5D must be followed in resolving questions of causation in cases to which the Act applies: Travel Compensation Fund v Tambree t/as Tambree and Associates [2005] HCA 69; 224 CLR 627 at 642-643 [45] (per Gummow and Hayne JJ); and Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; 239 CLR 420 at 440 [44] (per French CJ, Gummow, Hayne, Heydon and Crennan JJ).

3 Sections 5D and 5E of the Act are entitled as to deal with causation:

          “ Division 3 Causation

          5D General principles

          (1) A determination that negligence caused particular harm comprises the following elements:
              (a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and
              (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ( scope of liability ).
          (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
          (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
              (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
              (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

          (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

          5E Onus of proof

          In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

4 Section 5D reflects a structural approach conforming to the analysis and writing of Professor Stapleton: see in particular J Stapleton, “Legal Cause: Cause-in-Fact and the Scope of Liability for Consequences” (2001) 54 Vanderbilt Law Review 941 and J Stapleton, “Cause-in-Fact and the Scope of Liability for Consequences” (2003) 119 Law Quarterly Review 388. Professor Stapleton’s writing was specifically referred to in the “Ipp Report” (Review of the Law of Negligence – Final Report (September 2002)) at [7.27] n 6. In the Ipp Report, March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 was referred to as calling for a test of “common sense”. The report said that a “problem with this approach is that it gives courts and parties … very little guidance” (at [7.25]). It is unnecessary to discuss or debate that proposition. The Report then discussed causation as a two pronged test: factual causation and liability for consequences (at [7.26]-[7.49]).

5 The discussion in the Ipp Report, with one exception, did not avow any change to the common law. It cited the need for a suitable framework in which to resolve individual cases, which would encourage explicit articulation of reasons by judges for imposing or not imposing liability. It described s 5D as “helpful legislative guidance” (at [7.49]). Whether it did indeed change the common law is not free from doubt. That it propounded a structure conforming more to the approach of McHugh J in March v Stramare than that of Mason CJ would tend to indicate that it did. Further, though s 5D is entitled causation, it appears to encompass all limits on scope of liability, including remoteness (see discussion of this issue in the Ipp Report at [7.25]).

6 The Ipp Report recognised, through a non-exhaustive discussion of the common law, the various kinds of considerations that might make up the value judgments or normative considerations under s 5D(1)(b) or s 5D(2) and s 5D(4): causal overdetermination with results attributable to more than one sufficient condition (for further discussion of this issue see H L A Hart and A M Honoré, Causation in the Law, (2nd Ed, 1985, Clarendon) at 111-117, 122-125, 128-129 and 235-253); intervening causes; the cumulative operation of two or more factors to cause indivisible harm and material contribution; other expressions of material contribution of joint and concurrent tortfeasors; the place of increase in risk; foreseeability; the state of the plaintiff to be taken as found; the place of sheer coincidence; the importance of the relevant rule of responsibility: see generally D Villa, Annotated Civil Liability Act 2002 (NSW) (2004, Lawbook Co) at 46-62. The Report stated that for the resolution of individual cases, there can only be a case by case approach, rather than by application of detailed rules or principles.

7 The one explicit change to the common law, or at least a strand of approach in the common law was s 5E. This concerned the filling of evidentiary gaps by shifting the onus of proof in causation. Other than the onus of proof, the discussion in the Report left the development of legal principle in respect of such matters as material contribution to harm and the relationship between materially increasing risk and causation to the courts (at [7.27]-[7.36]).

8 In 2003, in Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 at 286 [85]-[89] Ipp JA, in a concurring judgment, took the opportunity to express his view that s 5D embodies the principles of the common law. This was premised on his Honour’s view that the two stage test in s 5D was a structure that conformed with the common law, implicitly, March v Stramare. In later cases in the New South Wales Court of Appeal, reference was made on a number of occasions to the “two stage test of causation” (as part of the common law) referring to what Ipp JA said in Ruddock v Taylor: see Tambree v Travel Compensation Fund [2004] NSWCA 24; (2004) Aust Contract Reports 90-195 at [146] per Sheller JA (with whom Mason P and Ipp JA agreed); Harvey v PD [2004] NSWCA 97; 59 NSWLR 639 at 655-656 [106] per Santow JA and 670-671 [185]-[191] per Ipp JA (at 643 [11] Spigelman CJ expressly reserved his position on the two stage test for causation); Graham v Hall [2006] NSWCA 208; 67 NSWLR 135 at 146-147 [78] per Ipp JA (with whom Giles JA and McColl JA agreed); Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [67]-[70] per McDougall J (with whom McColl and Bell JJA agreed); Elayoubi v Zipser [2008] NSWCA 335 at [55] per Basten JA (with whom Beazley JA and myself agreed); Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 at [59] per McDougall J (with whom Ipp and Young JJA agreed); Mobbs v Kain [2009] NSWCA 301 at [107] per McColl JA (with whom Macfarlan JA agreed); and Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 at [142] per McColl JA (with whom Ipp and Basten JJA agreed). As Ipp JA pointed out in Harvey, some support could be taken for his view that the two stage test conformed to the common law from what was said by Hayne J in Pledge v Roads and Traffic Authority [2004] HCA 13; 78 ALJR 572 at 574-575 [10]:

          “The questions that are relevant to legal responsibility are first, whether, as a matter of history, the particular acts or omissions under consideration (here the acts or omissions which led to the presence of the foliage, and the parking bays, and the absence of warning signs) did have a role in the happening of the accident. It is necessary then to examine the role that is identified by reference to the purposes of the inquiry - the attribution of legal responsibility. It is at this second level of inquiry that it may be necessary to ask whether, for some policy reason, the person responsible for that circumstance should nevertheless be held not liable [Stapleton, ‘Unpacking “Causation” ’ in Cane and Gardner (eds), Relating to Responsibility (2001) 145 at 166-173]” (emphasis in original).

9 Many, but not all, of these cases were before Tambree and Adeels Palace in the High Court.

10 In Adeels Palace, the Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ), in joint reasons, said at 440 [44] that it was not necessary to examine whether the approach under s 5D might lead to a different result than that reached by applying March v Stramare. There was no further discussion of that question. The appeal turned on questions of fact applying the “but for” test. Nor did the Court discuss s 5D(2).

11 The requirement to follow s 5D is clear. What its statutory content is and the extent of any continuity with developing common law concepts awaits judicial elucidation. In Woolworths Limited v Strong [2010] NSWCA 282 at [48] Campbell JA (with whom Handley AJA and Harrison J agreed) said that s 5D(1) excluded notions of “material contribution” and increase in risk. To the extent that his Honour was referring only to factors or circumstances from which a negative “but for” answer was given, so much is clear. However, the notion of cause at common law can incorporate “materially contributed to” in a way which would satisfy the “but for” test. Some factors which are only contributing factors can give a positive “but for” answer. Both the driver who goes through the red light and the driver with whom he collides who is not paying attention contribute to the accident. If either episode of neglect had not occurred the accident would not have occurred. The facts of Henville v Walker [2001] HCA 52; 206 CLR 459 provide another example. However, material contributions that have been taken to be causes in the past (notwithstanding failure to pass the ”but for” test) such as in Bonnington Castings Ltd v Wardlaw [1956] AC 613 are taken up by s 5D(2) which, though referring to “an exceptional case”, is to be assessed “in accordance with established principle”.

12 There is no suggestion that the application of common sense is in any way foreign to the task in ss 5D(1)(b), (2) and (4). Indeed it would be an odd interpretation of a law of the Parliament that excluded such a consideration from an evaluation of this kind against the background of the common law and, in particular, in the light of the contents of the Ipp Report.

This case does not demand any great agonising over the application of ss 5D(1)(b) and (4). All relevant considerations that inform the content of the appropriate scope of the negligent person’s liability and responsibility point to a positive conclusion as to causation and liability here. Injury to the mother was entirely foreseeable should negligence occur. The scope of the risk of harm protected by the duty and created by the breach included injury to the mother. The injury was not coincidental to the breach. It was the direct and immediate consequence of the negligence. The son in the car ran over his mother. The content of the duty and the attenuated standard of care were directed to the exercise of care to avoid injury to the mother in the very manner that occurred. There was no intervening act of a third party or of an abnormal event. The only other causal factor was the negligence of the person (the mother) to whom the duty was owed. There is no reason why the appropriate apportionment of respective responsibility is not best allocated through contributory negligence. Common sense would attribute the mother’s injury to the negligence of her son, as well as to her own negligence in putting herself in that position.

13 TOBIAS JA: On 18 August 2006 the respondent, the mother of the first appellant, sustained serious injuries when she was struck by a motor vehicle owned by the second appellant and being manoeuvred by the first appellant at the direction of the respondent into the carport of the family home at Seven Hills.

14 The circumstances of the accident were, as the appellants submitted, somewhat unusual as the first appellant was at the time only 11 years and 2 months old. The accident occurred because, whilst manoeuvring the vehicle into the carport, the first appellant’s foot slipped from the brake onto the accelerator causing the vehicle to surge forward and to collide with the respondent who was standing directly in front of it.

15 The respondent sued the first appellant by his next friend [the second appellant] as well as the second appellant as the owner of the motor vehicle at the time of the accident. The first appellant, as the driver of the vehicle at the time of the accident, was taken to be the agent of the second appellant acting within the scope of his authority in relation to the vehicle pursuant to s 112 of the Motor Accidents Compensation Act 1999. However, although the second appellant was the owner of the vehicle, the vehicle was driven by the respondent on a day-to-day basis and was in this sense her vehicle.

16 Liability was denied upon the grounds that in the circumstances, the first appellant did not owe any duty of care to the respondent; 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 respondent’s injuries; and finally, if there was a breach and there was causation the respondent was guilty of contributory negligence to the extent of 100% as permitted by s 5S of the Civil Liability Act 2002 (the Act).

17 Each of these contentions was rejected by the primary judge who on 27 November 2009 found in favour of the respondent on the issue of liability. His Honour held that the first appellant owed the respondent a duty of care, that he had breached that duty and that that breach was the cause of the respondent’s injuries. On the other hand he found that the respondent was guilty of contributory negligence, which he assessed at 50%. As damages had been agreed in the sum of $700,000, his Honour entered judgment for the respondent against the appellants in the sum of $350,000. It is from that decision that the appellants appeal to this Court denying liability on the same grounds as those advanced at trial.


      THE RELEVANT FACTS

18 The primary judge made a number of undisputed findings of fact that are conveniently summarised in the appellants’ written submissions as follows:

          (a) At about 4pm on 18 August 2006 the Respondent was injured when a vehicle driven by her son, the First Appellant, collided with her, propelling her into a rockery area so that the vehicle went on top of her;
          (b) As a result, the Respondent suffered crush injuries, and burns from the exhaust pipe of the vehicle;
          (c) The vehicle collided with the Respondent because the First Appellant’s foot slipped from the brake to the accelerator as he attempted to drive the vehicle into the family carport;
          (d) The First Appellant [who was 11 years 2 months old at the time] was driving the vehicle with the Respondent’s permission;
          (e) The First Appellant and the Respondent intended that the distance to be driven by the First Appellant was 3 to 4 metres only;

          (f) The Respondent was standing a distance of 2 metres in front of the vehicle, directing the First Appellant into the carport;

          (g) The First Appellant had some, very limited, prior experience in the driving of a motor vehicle; that prior experience was limited to the 5 or 6 occasions when he drove his father’s car into and out of the family carport;

          (h) On some of these occasions, the Respondent was present in the passenger’s seat of the father’s vehicle;

          (i) The First Appellant had never driven the Respondent’s vehicle before the accident on 18 August 2006;

          (j) The First Appellant had never ridden a motorcycle, or driven any other motor vehicle, prior to the accident on 18 August 2006, apart from his father’s vehicle [Red 47M-48J].

      THE RELEVANT EVIDENCE AT TRIAL

19 The respondent’s evidence at trial was extremely brief as she had no recollection of the circumstances of the accident and gave no evidence at all as to the first appellant’s prior driving experience. She was therefore not cross-examined. Her husband, Andrew Zanner, gave evidence in support of her case as well as detailed evidence as to the first appellant’s prior driving experience which was not accepted by the primary judge. In this respect his Honour preferred the first appellant’s evidence of his prior driving experience to that of his father.

20 The effect of the first appellant’s evidence was that prior to the accident he had driven his father’s vehicle four or five times into or out of the carport travelling approximately three or four meters. On those occasions apart from one, his father was in the passenger seat of the vehicle guiding him.

21 In the course of his evidence the first appellant was taken to a statement made by him on 3 September 2009 in which he provided an account of the accident relevantly in the following terms:

          “5. I had asked mum earlier in the afternoon whether I could park the car when we got home and she had said she would think about it. I had done this on approximately 5 previous occasions.

          6. As mum pulled into our driveway, I asked her again whether I could park the car. Mum said yes. She got out of the car and went and stood in front of it, in the car port. Our carport is a double car port. I got out of the front passenger seat and went around the car to sit in the driver’s seat.

          7. When I got into the driver’s eat, I left it in the same position as mum had it in when she was driving. I did not adjust it and mum did not tell me to. We were approximately the same height at the time. I put on my seatbelt.

          8. Mum was standing directly in front of the car, directing me into the carport. The car has an automatic transmission. I was moving the car into the carport slowly and braking when I had to, when my foot slipped off the brake and onto the accelerator accidentally.

          9. The car went forward and hit my mum. The back of our carport is open. The car port is more of an awning and is not enclosed. Behind it is a rockery garden and then behind that is our house. Mum was stuck under the car, between the bottom of the car and the garden.”

22 In his oral evidence the first appellant added that his mother was standing about two metres in front of the vehicle when he began to drive it. He was not cross-examined as to the circumstances of the accident. There was no evidence as to what precisely the respondent was doing, if anything, which amounted to “directing [the first appellant] into the carport”.


      THE REASONING OF THE PRIMARY JUDGE ON THE ISSUES IN DISPUTE

23 On the issue of whether the first appellant owed the respondent a duty of care, the primary judge was referred to and cited passages from the reasons of the High Court in Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510 in which that court overruled its earlier decision in Cook v Cook (1986) 162 CLR 376. In Cook it had been held that a learner driver or inexperienced driver owed a lower standard of care to a supervising passenger than to other passengers in the vehicle. That decision was therefore more concerned with the standard of care owed by a particular driver than to whether a duty of care was owed in the first place.

24 Both at trial and before this Court the appellants relied in particular upon the following passage in the judgment of Gleeson CJ in Imbree at [7]:

          “It was not suggested in this case (or in Cook v Cook …) that the negligence of the driver consisted in undertaking the driving in the first place. 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. Where that would leave an instructor, or supervisor, or other passenger, who directed or permitted the act is not the present problem. According to the circumstances, it could 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.”

25 It was submitted by the appellants that the present case was one where there was such a degree of incompetence, resulting from the first appellant’s inexperience, that his taking control of the vehicle itself was an act of negligence for which the appellants were not responsible. Alternatively, there was an absence of causation because the respondent herself brought about the situation whereby the first appellant took control of the motor vehicle. Even if causation was established, it was submitted that the respondent’s contributory negligence was in the order of 100% so that the appellants were not liable to the respondent in respect of her injuries.

26 Reliance was also placed upon the following passages from the joint judgment of Gummow, Hayne and Kiefel JJ in Imbree as supporting the submission that no duty of care was owed by the first appellant to the respondent:

          “69. The common law recognises many circumstances in which the standard of care expected of a person takes account of some matter that warrants identifying a class of persons or activities as required to exercise a standard of care different from, or more particular than, that of some wholly general and ‘objective community ideal’. Chief among those circumstances is the profession of particular skill. A higher standard of care is applied in those cases. That standard may be described by reference to those who pursue a certain kind of occupation, like that of medical practitioner, or it may be stated, as a higher level of skill, by reference to a more specific class of occupation such as that of the specialist medical practitioner. At the other end of the spectrum, the standard of care expected of children is attenuated .
          70. But what distinguishes the principle established in Cook v Cook from cases of the kind just mentioned is that Cook v Cook requires the application of a different standard of care to the one defendant in respect of the one incident yielding the same kind of damage to two different persons, according to whether the plaintiff was supervising the defendant's driving or not. In all other cases in which a different level of care is demanded, the relevant standard of care is applied uniformly. No distinction is drawn according to whether the plaintiff was in a position to supervise, even instruct, the defendant although, of course, if the plaintiff was in that position, a failure to supervise or instruct may be of great importance in deciding whether the plaintiff was contributorily negligent.
          71. There is no warrant for the distinction that was drawn in Cook v Cook . Cook v Cook should no longer be followed in this respect.” (Emphasis added)

27 The primary judge noted that the appellants seized on the last sentence of [69] of the joint judgment in Imbree as establishing that in a case such as the present the duty of care of the first appellant to the respondent was “so attenuated as not to exist”. Whether this was so or not, it is clear and his Honour so recognised that the plurality in Imbree were not suggesting that the types of cases to which they refer at [69] were ones in which there was no duty of care owed: rather, it was the content of that duty or the standard of care which was being discussed. This is made clear by their Honours’ citation of McHale v Watson (1966) 115 CLR 199 as authority for the proposition articulated in the last sentence of [69] where it was held by a majority of the High Court that the age, intelligence and experience of an infant defendant (in that case a 12 year old boy sued for negligence) should be taken into account when considering the reasonableness of his conduct (at 205 and 210 per McTiernan ACJ).

28 Thus in McHale at 213-214 after referring to the principle that a defendant does not escape liability by proving that he is abnormal in some respect which reduces his capacity for foresight or prudence, Kitto J observed:

          ” … The standard of care being objective, it is no answer for him, any more than it is for an adult, to say that the harm he caused was due to his being abnormally slow-witted, quick-tempered, absent-minded or inexperienced. But it does not follow that he cannot rely in his defence upon a limitation upon the capacity for foresight or prudence, not as being personal to himself, but as being characteristic of humanity at his stage of development and in that sense normal. By doing so he appeals to a standard of ordinariness, to an objective and not a subjective standard. In regard to the things which pertain to foresight and prudence - experience, understanding of causes and effects, balance of judgment, thoughtfulness - it is absurd, indeed it is a misuse of language, to speak of normality in relation to persons of all ages taken together. In those things normality is, for children, something different from what normality is for adults; the very concept of normality is a concept of rising levels until years of discretion are attained. The law does not arbitrarily fix upon any particular age for this purpose, and tribunals of fact may well give effect to different views as to the age at which normal adult foresight and prudence are reasonably to be expected in relation to particular sets of circumstances. But up to that stage the normal capacity to exercise those two qualities necessarily means the capacity which is normal for a child of the relevant age; and it seems to me that it would be contrary to the fundamental principle that a person is liable for harm that he causes by falling short of an objective criterion of propriety in his conduct - propriety, that is to say, as determined by a comparison with the standard of care reasonably to be expected in the circumstances from the normal person - to hold that where a child's liability is in question the normal person to be considered is someone other than a child of corresponding age.”

29 The primary judge rejected the appellants’ submission that there was no duty of care owed by the first appellant to the respondent although he acknowledged that this was a case where the respondent was guilty of contributory negligence. He considered that there were two competing considerations. The first was that the respondent had created the situation in which she found herself by placing her son, then aged 11, in charge of a motor vehicle and permitting him to drive it by himself albeit for a distance of only three to four metres and, further, that she had then stood in front of the vehicle where she was clearly likely to be injured if her son lost control of the vehicle as occurred when his foot slipped from the brake to the accelerator.

30 The second consideration was that the first appellant had driven a motor vehicle before in precisely the same circumstances as those in which the respondent was injured in that he had driven or reversed his father’s vehicle into and out of precisely the same carport into which he was driving his mother’s vehicle on the occasion in question. His Honour found that the respondent had in fact seen the first appellant driving his father’s car in the manner indicated and indeed, she had been a passenger in the front seat with him when he had done so. The primary judge noted that there was no suggestion that any mishap had occurred on these occasions.


31 His Honour therefore considered that the respondent’s position was

          “…a little different from that of somebody who was unaware that the [first appellant] had never driven a car before. The [respondent] I think was entitled in these circumstances to expect some small degree of driving competence of the [first appellant], albeit of a basic and rudimentary kind. She was certainly not entitled to expect that the [first appellant] was capable of driving a motor vehicle on the open road … She was, I think, entitled to expect, because she had seen it occur on a number of occasions, although a small number, without mishap, that the [first appellant] would be capable of safely edging a motor vehicle into a carport.”

32 The first appellant had given evidence that he found his father’s car easier to drive than his mother’s car. However, the respondent was not aware of that at the time and the evidence was that both his mother’s and father’s vehicles had automatic transmission. Why he perceived one to be more difficult to drive than the other was not the subject of any evidence.

33 On the issue of whether a duty of care existed, the primary judge’s findings were as follows:

          “I think the [respondent] was entitled to expect that the [first appellant] would display a minimal degree of competence in driving an automatic car (his mother’s care which he was driving at the time of the accident was automatic according to his evidence, as was his father’s) at a very slow speed in a forward direction for a distance of about three to four metres into the family carport. There is no suggestion that any mishap, such as the [first appellant’s] foot moving from the brake to the accelerator unexpectedly, as happened in the accident here, occurred on these previous occasions. Thus I think there was a duty of care on the defendant to behave with reasonable care in driving the vehicle on the day in question.

34 The primary judge then turned to the content of the first appellant’s duty of care to the respondent. He accepted that the standard of care expected of children was attenuated as had been suggested in the last sentence of [69] of the joint judgment in Imbree. I interpolate that the respondent filed a Notice of Contention challenging that finding.

35 Having distinguished the situation that may have resulted in there being no duty if the first appellant had never driven before or if the respondent had had no prior experience of her son’s driving so that she had no idea of his level of competence, the primary judge concluded that there was a duty on the first appellant to take reasonable care in edging, that is to say driving, a motor vehicle at very slow speed into a carport over a distance of three to four metres being an activity which the respondent had witnessed the first appellant performing on a small number of previous occasions. He found that the respondent was entitled to expect that the first appellant’s foot would not slip from the brake to the accelerator and the fact that it did constituted a breach of the first appellant’s duty of care.

36 On the other hand, his Honour found, as I have indicated, that the respondent contributed to her injuries by her own negligence in standing in front of the vehicle, and thereby taking the risk that the first appellant might lose control of the vehicle, as well as in permitting him to take the wheel of the vehicle at all.

37 Later in his judgment the primary judge returned to the issue of duty or no duty observing:

          “I do not see that policy demands that no duty be found in circumstances where a child was allowed to drive a motor vehicle on private property for a very short distance and at a very slow speed in the course of parking a car in a carport. Different considerations may of course apply, and probably would apply, if the boy had illegally driven the car on a public street and occasioned injury to the person supervising him. That is not this case.”

38 I interpose that there was no obligation upon the first appellant to be licensed to drive the vehicle on private property: see Road Transport (Driver Licensing) Act 1998 s 25(1) and the definition of “road” in the Dictionary to that Act which, relevantly and by implication, excludes private property.

39 Although his Honour did not deal specifically with the issue of causation, it is implicit in his conclusion that he considered that it was established. However, it is noteworthy that he did not, as he was required to do, apply the tests with respect to causation now governed by s 5D(1) of the Act. I shall return to this issue when dealing with the appellants’ submissions thereon.

40 Finally, the primary judge dealt with the issue of contributory negligence. The appellants submitted that his Honour should find contributory negligence of 100% as he was permitted to do by s 5S of the Act.

41 His Honour’s finding with respect to the respondent’s contributory negligence was as follows:

          “I think the [respondent’s] conduct in putting the [first appellant] in charge of the vehicle alone, when she was not sitting in the passenger seat beside him and guiding him, and indeed in standing in front of the vehicle while he was doing so, contributed to the occurrence of the accident, along with the [first appellant’s] negligence in failing to keep proper control of the vehicle and in particular in failing to keep his foot in the appropriate place so that it did not slip from the brake to the accelerator at the wrong time.”

42 However, his Honour was not prepared to find that the respondent was 100% responsible for her injuries. He referred to the well-known decision of the High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 wherein it was decided that there were two questions to be considered on the issue of contributory negligence: firstly the causal potency of the plaintiff’s conduct in contributing to the harm he or she suffered and, secondly, the culpability of such a person. His Honour then determined that the parties had contributed equally to what occurred. He was of that view in respect to both causal potency of the conduct of the parties and culpability. His reasons for this finding were articulated in the following paragraph:

          “In terms of culpability, I think that placing a young child in control of a car by himself and not sitting beside him to direct and observe him, and indeed standing in front of the car while he was driving in this way for the first time, he having driven previously with somebody else at the passenger’s seat, either his father or his mother, was an act of culpable negligence on the part of the [respondent].”

43 Taking all matters into consideration his Honour therefore considered that it was proper to assess the respondent’s contributory negligence at 50%.


      THE ISSUES ON THE APPEAL

      (a) Did the first appellant owe the respondent a duty of care?

44 In reliance upon the passage from the judgment of Gleeson CJ in Imbree at [7] which I have recorded at [24] above, it was submitted that it was open to a court to find that, in rare circumstances, a driver of a motor vehicle does not owe a duty of care to a person injured as a result of his or her driving. It was submitted that the present was such a case given that first, the respondent gave control of her motor vehicle to an 11 year old child and, second, she did not remain within the vehicle to strictly supervise his conduct and, if necessary, to retake control of the vehicle.

45 The appellants further submitted that the first appellant was so obviously lacking in competence and experience that his act in taking control of the vehicle was itself plainly negligent. Accordingly the respondent cannot have the benefit of a duty of care, as it was she who permitted her son to take control of the vehicle. The case therefore fell within the circumstances contemplated by Gleeson CJ in Imbree as well as by the plurality who, when referring to Insurance Commissioner v Joyce (1948) 77 CLR 39 said (at [82] omitting footnote references):

          “The conclusion that a defendant owed the plaintiff no duty of care is open in a case like Joyce if, as Latham CJ said ‘[i]n the case of the drunken driver, all standards of care are ignored [because the] drunken driver cannot even be expected to act sensibly’ (emphasis added). And as indicated earlier in these reasons, it is that same idea which would underpin a conclusion that the plaintiff voluntarily assumed the risk of being driven by a drunken driver." (Emphasis in original)

46 It was thus submitted that the respondent had no reasonable expectation that the first appellant would be capable of driving the vehicle safely or sensibly. The error he made in permitting his foot to slip from the brake to the accelerator was precisely the type of error that might have been expected by the respondent having regard to her son’s age and lack of experience.

47 In my opinion the appellants’ submission that the first appellant owed no duty of care at all to the respondent should be rejected.

48 In light of the findings of the primary judge, the present case is distinguishable from that of Joyce referred to by the plurality in Imbree at [82] to which I have referred above. Furthermore, the passage from the judgment of the Chief Justice in Imbree on which the appellants relied lacks a factual foundation in the present case given his Honour’s finding, which is not challenged, that the first appellant, having successfully and without mishap driven his father’s motor vehicle into and out of the carport on five or six occasions, was competent to perform the same exercise with respect to his mother’s vehicle. After all, he was only required to drive the vehicle three or four metres from the apron outside the carport into the carport itself. The vehicle had automatic transmission so that once it was put into “drive” it would inch forward slowly until the brake was applied. No doubt this is the manoeuvre the first appellant had successfully performed on his father’s vehicle five or six times to his mother’s knowledge. There was no reason to believe that he would be unable to perform the same manoeuvre on the respondent’s vehicle with the same outcome.

49 In the foregoing circumstances in my opinion the primary judge was correct in finding that the first appellant owed the respondent a duty of care. Although it is true that the possibility of the first appellant’s foot slipping from the brake to the accelerator was a foreseeable risk, it was not inevitable that that risk would eventuate. Imbree supports the proposition that a driver of a motor vehicle of any age (and certainly an 11 year old boy) owes a duty of care to, in this case, someone in the position of the respondent. The real issue is the scope or content of their duty to which I now turn.


      (b) What was the scope and content of the first appellant’s duty of care and was that standard breached?

50 The appellants relied upon the statement of the plurality in Imbree at [69], being the sentence that I have emphasised at [26] above. The primary judge accepted the submission that the standard of care expected of the first appellant was “attenuated” insofar as that standard of care was not that which would be expected if he were driving on a public road. Rather, it was the standard expected of an 11 year old child who was to drive the vehicle over a distance of three to four metres on private property into a carport in circumstances where, to the knowledge of the respondent, he had performed that manoeuvre on five or six previous occasions without mishap. As the vehicle which he was driving had automatic transmission, the standard of care expected of him required that, once he had put the vehicle into “drive”, he should keep his foot on the brake allowing the vehicle to inch forward to the point where he was required to bring it to a halt. He failed to adhere to that standard by permitting his foot to slip off the brake onto the accelerator thereby causing him to lose control of the vehicle as it accelerated forward.

51 The appellants submitted that the amount of driving “experience” of the first appellant was so obviously negligible that the primary judge should have disregarded it. This was particularly so as he had had no previous experience driving his mother’s vehicle which, he said, was more difficult to drive than that of his father. However, that was not a factor known to the respondent.

52 It was further submitted that although the first appellant had managed to park his father’s vehicle on a few previous occasions without mishap, that should not have been taken by the primary judge as any basis for the imposition upon the first appellant of any meaningful standard of care. Furthermore he had never driven the vehicle alone prior to the accident as he had always had either his mother or father in the passenger seat beside him. There was therefore no basis upon which the primary judge could find that he had any ability at all to manoeuvre the vehicle in the manner proposed. Accordingly, if there was a duty of care it had no relevant content and, in particular, the first appellant was not required to exercise a standard of care which enabled him to park the vehicle safely in the carport.

53 Finally, it was submitted that the standard of the first appellant’s “driving” was exactly what the respondent was entitled to expect, namely, that he was by reason of his age and lack of experience, incompetent and error-prone.

54 In my view the primary judge was correct to reject these submissions and to find that the first appellant owed to the respondent a duty of care limited to manoeuvring the vehicle into the carport for three or four metres as he had with his father’s vehicle. He held that the respondent’s position was somewhat different from that of a person who was unaware that the first appellant had never driven a motor vehicle before. Given her knowledge of his 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. In particular, she was entitled to expect that he would be capable of safely edging the vehicle into the carport. In my view, these findings were open on the evidence and correct.

55 The appellants nevertheless submitted that as the first appellant had never driven his mother’s vehicle before and had only driven his father’s vehicle with his father or mother in the passenger seat, the primary judge had failed to sufficiently attenuate the standard of care expected of the first appellant in those circumstances.

56 With respect, like the primary judge, I would reject this submission. The respondent, according to the first appellant’s evidence which the primary judge accepted, was standing in front of the vehicle “directing” him. Although there was no evidence as to precisely how she was directing him, it would be reasonable to infer that she was moving back as the vehicle came forward, with the intention of indicating when the first appellant was to apply the brake so as to bring the vehicle to a halt.

57 The appellants then submitted that the primary judge failed to sufficiently attenuate the standard of care applicable to the first appellant and had he done so there would have been no breach. They further submitted that what occurred was one of the adverse consequences that could reasonably have been expected to have happened when placing an 11 year old in charge of a motor vehicle, that is, that he might apply the accelerator instead of the brake or his foot might slip from the brake to the accelerator particularly when he was unfamiliar with the vehicle concerned and without direct supervision from someone sitting beside him. In this latter respect it was conceded that having someone sitting beside him in the circumstances of the present case would not have assisted in preventing his foot slipping in the manner that occurred.

58 In essence, it was submitted that when properly attenuated, the standard of care would be one in respect of which there was no breach because what in fact happened was what one would have expected to happen.

59 When pressed as to how he would describe the standard of care applicable to the present case, senior counsel for the appellants was forced into the position of submitting that the first appellant was really incapable of doing anything more than, perhaps, turning the ignition of the vehicle on or off. Such a standard of care in the circumstances of the present case would amount to no standard of care at all and would have the effect of negativing any duty.

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. It is a mistake that could happen to an adult as well as to a child of the first appellant’s age. There is no reason, in my view, why the first appellant was not bound to exercise reasonable care not to permit his foot to so slip. There is nothing to suggest that he did not understand the purpose of the brake or the effect of depressing the accelerator. It would not be unreasonable to infer that an 11 year old, who had successfully manoeuvred his father’s vehicle into and out of the carport on five or six previous occasions, understood the purpose of the brake and how it fitted into the function he was undertaking and that it was important that he not take his foot off the brake as the car would then move forward (or back if he was in reverse) more rapidly. Accordingly, it is unnecessary to consider the respondent’s Notice of Contention.

61 For the foregoing reasons in my opinion the submission of the appellants that the first appellant was not in breach of any relevant standard of care should be rejected.


      (c) Was the first appellant’s breach of his duty of care to the respondent causative of her injuries?

62 The appellants submitted that the sole cause of the accident was the respondent’s own conduct as a consequence whereof the issue of causation was not satisfied. By placing the first appellant in control of the vehicle unaccompanied, the respondent created a situation that ought never to have existed. What followed was not only foreseeable but also likely. I have already indicated that I accept that what happened was foreseeable but was not inevitable.

63 Although not acknowledged by the primary judge and, it would seem, not advanced to his Honour by either of the parties as relevant to his consideration, the issue of causation is governed, relevantly, by ss 5D(1) and (4) of the Act and which are in the following terms:

          “(1) A determination that negligence caused particular harm comprises the following elements:
              (a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation), and
              (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ( scope of liability ).
          (2) …
          (3) …
          (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

64 The appellants submitted that it is possible that it is still the law that common sense must be applied in determining causation in accordance with the statement of Mason CJ in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 515. However, in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 French CJ, Gummow, Hayne, Heydon and Crennan JJ in a joint judgment observed (at [44]) that in cases where the Act or equivalent statutes are engaged, it is the applicable statutory provision that must be applied. Furthermore, at [45] their Honours observed that the first of the two elements identified in s 5D(1) (factual causation) is determined by the “but for” test: but for the negligent act or omission, would the harm have occurred?

65 It is to be noted that Adeels Palace was decided on 10 November 2009, only some two and a half weeks before the decision of the primary judge in the present case. It is apparent that it was not brought to his Honour’s attention. In fact it was submitted that s 5D was not relevant to the present case. That was not so.

66 The appellants acknowledged that the “but for” test was satisfied in the present case as a consequence whereof there was factual causation and s 5D(1)(a) was satisfied. Its provisions were recently discussed by Campbell JA with whom Handley AJA and Harrison J agreed in Woolworths Limited v Strong [2010] NSWCA 282 at [45]-[51]. However, it was submitted that the application of s 5D(1)(b) and (4) to the conduct of the respondent and the first appellant required a finding that it was not appropriate for the scope of the first appellant’s liability to extend to the harm caused to the respondent as a consequence of his conduct.

67 The appellants submitted that even if the first appellant breached his duty of care, the scope of his liability should not have been found to extend to the respondent’s injuries as a consequence whereof the “scope of liability” test for causation imposed by s 5D(1)(b) was not satisfied.

68 It was further submitted that the requirement of the court to consider the scope of liability extended to both the respondent and the first appellant. If this be so, there was every reason for the court to find, in terms of s 5D(4), that responsibility for the respondent’s injuries should be imposed upon her alone. She was an adult in control of the situation; she was aware that the first appellant had very limited driving “experience” and that he had never driven her vehicle as distinct from her husband’s vehicle. Critically, she put an 11 year old boy in control of a vehicle, and elected not to sit beside him so that she would at least be protected within the vehicle if something went wrong and so she could, first hand, supervise and instruct him. On the contrary, and critically, she elected to stand immediately in front of the vehicle with the obvious risk of danger if anything went wrong.

69 The respondent submitted that the starting point of any consideration of the scope of liability within the meaning of s 5D(1)(b) was, first, the fact that the first appellant had already been found to have breached his duty of care and to have factually caused the respondent’s injuries within the meaning of s 5D(1)(a). Second, it was accepted that the scope of liability requirement called for a normative decision, namely, whether the first appellant ought to be held liable to pay damages for the harm he in fact caused. That normative question involved a decision based on policy considerations and it was fundamental to the law as a matter of policy that dangerous, potentially lethal machines such as motor vehicles must be driven with due care and attention. If they are not and the driver, owing a relevant duty, is found by his breach of that duty to have factually caused the relevant harm, then there was every reason as a matter of policy why he should be held responsible for the harm so caused.

70 Section 5D(1)(b) had its genesis in what is colloquially known as the Ipp Report being the Review of the Law of Negligence (2002) (the Report), particularly at paragraph 7.41 et seq. The relevant section of the Report is headed “The two-pronged test of causation: liability for consequences”. At paragraph 7.41 the Report relevantly states:

          “[T]he ultimate question to be answered in relation to a negligence claim is not the factual one of whether the allegedly negligent conduct played a part in bringing about the harm, but rather a normative one about whether the defendant ought to be held liable to pay damages for that harm. In other words, the question is: should the defendant be held liable for any of the harmful consequences of the negligence and if so, for which? These questions could be said to concern the appropriate ‘scope of liability’ for the consequences of negligence.”

71 At paragraph 7.42 the Report referred to the danger that a finding that the negligent conduct was a necessary condition of the harm may, by itself, be thought to justify a conclusion that the defendant ought to be held liable for the consequences of the negligence. The point being made was not that the imposition of liability may not be justified

          “but only that a finding that the negligence was a necessary condition of the harm is not, by itself, sufficient to support that conclusion, because there is an infinite number of necessary conditions of every event.”

72 At paragraph 7.45 the Report acknowledged that the question of “the scope of liability for consequences” tends to be seen as one that has to be answered case-by-case rather than by the application of detailed rules or principles. Examples were then given where a person is held not liable for “coincidental” consequences of their negligence although that was not a principle of universal application: Chappel v Hart (1998) 195 CLR 232.

73 Finally, at paragraph 7.47 the Report stated:

          “For present purposes, the important point is that there appears to be a perception amongst various groups that courts are too willing to impose liability for consequences that are only ‘remotely’ connected with the defendant’s conduct. In other words, there is a feeling that the net of responsibility for the consequences of negligence is being cast too widely.”

74 Accordingly, the report recommended that in determining liability for the harmful consequences of negligence it is relevant to consider:

          “(a) whether (and why) the responsibility for the harm should be imposed on a negligent party; and
          (b) whether (and why) the harm should be left to lie where it fell.”

75 In this context the Report noted with respect to the scope of liability element of causation that it covers issues, other than factual causation, referred to in terms such as “legal cause”, “real and effective cause”, “commonsense causation”, “foreseeability” and “remoteness of damage”.

76 It was acknowledged in the Report that the authors’ consideration of and recommendations about causation had been greatly assisted by an article with the ultimate title “Cause-in-Fact and the Scope of Liability for Consequences” (2003) 119 LQR 388 authored by Professor Jane Stapleton. The contents of this article were referred to by Ipp JA in Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 at [85] to [89]. His Honour noted that Professor Stapleton’s thesis explained that there were two fundamental questions involved in the determination of causation in tort. The first related to the factual aspect of causation now embodied in s 5D(1)(a). The second was that now embodied in s 5D(1)(b), which was described by Ipp JA at [87] in the following terms:

          “The second aspect concerns ‘the ‘appropriate’ scope of liability for the consequences of tortious conduct’ (Stapleton, op cit, at 411). In other words, the ultimate question to be answered when addressing the second aspect is a normative one, namely, whether the defendant ought to be held liable to pay damages for that harm.”

      At [92] his Honour further acknowledged that being a normative decision, it was one based on policy considerations.

77 Section 5D(1)(b) has been given passing reference in a number of recent decisions of this Court. Thus in Graham v Hall [2006] NSWCA 208; (2006) 67 NSWLR 135 at [78], Ipp JA, after referring to the fact that s 5D was modelled on the recommendations in the Report, noted with respect to the second element that it

          “involves normative issues that may be applicable in determining whether negligent conduct caused harm. It is in this context that the statement that causation is a matter of commonsense is most often made.”

78 In Mobbs v Kain [2009] NSWCA 301, McColl JA, with the concurrence of Macfarlan JA, stated the following with respect to causation:

          “107. The principles embodied in s 5D of the Civil Liability Act accord with the common law concept of causation: Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 (at [59]) per McDougall J (Ipp and Young JJA agreeing). In applying the common law principles in the context of a motor vehicle accident, the relevant test for causation is that stated by McHugh J in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at [23], namely ’the breach of duty by the defendant caused the particular damage that the plaintiff suffered…[and] [t]he existence of the relevant causal connection is determined according to common sense ideas’: see Flounders v Millar [2007] NSWCA 238 (at [91]) per Hoeben J; (at [38]) per Ipp JA (Handley JA agreeing with both judgments)”.

      Her Honour repeated this passage in Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 at [142], Ipp JA agreeing.

79 The most that can be extracted from the foregoing references is that this Court’s determination of whether it is appropriate for the scope of the first appellant’s liability to extend to the harm caused to the respondent, is to be considered as a matter of common sense taking into account any relevant policy considerations that might assist in determining whether or not, and why, responsibility for the harm to the respondent should be imposed upon the first appellant.

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.

81 The present case involves two necessary conditions that contributed to the occurrence of the respondent’s injuries. The first was the first appellant’s conduct in his control of the vehicle; the second was the respondent’s conduct in permitting the first appellant to drive the vehicle and then standing in front of it. It is the latter factors that give rise to the respondent’s contributory negligence. Be that as it may, it does not follow that because the respondent contributed to her injuries in the manner referred to, as a matter of policy the first appellant should not be held to account with respect to his own negligence. After all the most proximate cause of those injuries was his negligence.

82 As has already been observed, it cannot be said that the first appellant was not fully aware, notwithstanding his age, of the dangers associated with driving a motor vehicle and, in particular, of the necessity to ensure, given his knowledge that the respondent was standing in front of the vehicle, that his foot did not slip from the brake to the accelerator. In these circumstances it seems to me that it is appropriate for the scope of the first appellant’s liability to extend to the harm to the respondent directly caused by his conduct and that, subject to the question of contributory negligence, there was no policy reason why responsibility for that harm should not be imposed upon him.

83 For the foregoing reasons I would therefore reject the appellants’ submission that the primary judge was in error in finding in favour of the respondent on the issue of causation.


      (d) Did the primary judge err in finding that the respondent was guilty of contributory negligence to the extent only of 50%?

84 There are two elements to this aspect of the appellants’ submissions. The first is that it was submitted that pursuant to s 5S of the Act, the primary judge should have considered it just and equitable to reduce the respondent’s damages by 100%. The appellants relied upon their submissions advanced in connection with the issue of causation to support this proposition. They therefore submitted that the primary judge had erred in failing to find that the respondent’s conduct and, in particular, her overall control of the situation and ability to direct the first appellant’s conduct, was such that a reduction of damages for contributory negligence of 100% was appropriate.

85 The appellant referred the Court to Chapter 8 of the Report that dealt with this question. In paragraph 8.21 reference is made to the decision of the High Court in Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 where it held that a reduction of 100% was not permissible on the basis that that would amount to a finding that the plaintiff was wholly responsible for the damage suffered which was contrary to the then apportionment legislation which operated on the premise that the plaintiff suffered damage partly as a result of his or her own fault and partly as a result of the fault of the defendant.

86 As appears in paragraph 8.23 of the Report, it is apparent that its authors based their recommendation to permit apportionment of 100% contributory negligence on the relationship between the defences of contributory negligence and voluntary assumption of risk noting that the latter constituted a complete defence in the sense that it provided the basis for denying the plaintiff any damages at all. It was noted that a person would be held to have voluntarily assumed the relevant risk only if he or she was actually aware of the precise risk in question and freely accepted that risk.

87 However, since the introduction of the defence of contributory negligence, the defence of voluntary assumption of risk has become more or less defunct as conduct that could amount to the voluntary assumption of risk could also amount to contributory negligence.

88 At paragraph 8.24, it was noted that most defences were only applicable once it had been decided that the defendant was negligent and that harm was suffered by the plaintiff as a result of that negligence so that it followed that denying the plaintiff any damages need not be viewed as inconsistent with the finding that the defendant was negligent. The Report continued:

          “In other words, there may be cases in which the plaintiff’s relative responsibility for the injuries suffered is so great that it seems fair to deny the plaintiff any damages at all. It is important to remember that apportionment of damages is concerned with the issue of appropriate remedy, not with liability. It does not follow from a decision that the plaintiff should be denied any damages at all that the defendant was not at fault. Such a decision only means that as between the two parties at fault, the plaintiff should bear full legal responsibility for the harm suffered.”

89 The authors’ view as expressed at paragraph 8.25 was that cases where it would be appropriate to reduce damages payable to a contributorily negligent plaintiff by more than 90% would be “very rare”. The sort of cases they had in mind were ones 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.

90 As the respondent submitted, the primary judge paid particular regard to her knowledge that the first appellant had been able to competently handle her husband’s vehicle in a similar situation on five or six previous occasions. It followed, so it was contended, that the conduct constituting a breach by the first appellant was neither patently obvious to her nor, based on prior experience, was it likely to occur. His breach was a simple one, resulting from inadvertence only. In these circumstances it would not be fair to “deny the plaintiff any damages at all”: Mackenzie v The Nominal Defendant [2005] NSWCA 180; (2005) 43 MVR 315 at [61] per Giles JA.

91 The respondent further submitted that notwithstanding his age, the effect of the High Court’s decision in Imbree in overruling Cook was that the first appellant as driver of the vehicle owed the respondent the same duty of care as that owed by any other driver. His conduct in allowing his foot to slip from the brake to the accelerator constituted a fundamental departure from the relevant standard of care and was one which had high causal potency given the fact that it was objectively reasonable for the respondent to expect in the circumstances that the first appellant could move the vehicle a few metres on what was essentially level ground. Further, there was no suggestion that the first appellant was not aware, notwithstanding his age, that in the circumstances if he allowed his foot to slip from the brake to the accelerator that that had the potential to lurch the vehicle forward with grave risk to the respondent who was standing immediately in front of the vehicle to the first appellant’s knowledge.

92 Accordingly, when one evaluates the justice and equity of the situation, it cannot be the case that the respondent was wholly responsible and therefore should bear full legal responsibility for the harm suffered by her.

93 In my opinion the respondent’s submissions should be accepted. It cannot be that the present is one of those “very rare” cases where it can legitimately be said that it is just and equitable to reduce the respondent’s damages by 100%. The appellants’ submission to the contrary should, therefore, be rejected.

94 The second aspect under this heading relates to the primary judge’s finding that the first appellant and the respondent were equally responsible for the latter’s injuries. The appellants acknowledged that to successfully challenge his Honour’s apportionment, it was necessary for them to establish that that apportionment was manifestly inadequate. The relevant principles were recently restated by McColl JA, with whom Macfarlan JA agreed, in Mobbs v Kain in the following terms:

          “112. Appellate courts considering whether to intervene on questions of apportionment for contributory negligence are bound by the constraints identified in Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492.

          113 Since the degree of liability due to a plaintiff’s contributory negligence is a question not of principle or of positive findings of fact or law but of proportion, of balance and relative emphasis and of weighing different considerations all of which involve an individual choice or discretion as to which there may well be differences of opinion by different minds (such a finding, if made by a judge, is not lightly reviewed: Mousa v Marsh [2001] NSWCA 317 (at [12]) per Sheller JA (with whom Powell and Heydon JJA agreed). Accordingly, to set aside an apportionment of liability it must be shown that the failure to exercise the discretion involved in the apportionment exercise properly was unreasonable or plainly unjust: Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Co Pty Limited [2002] NSWCA 461; (2001) 53 NSWLR 626 (at [60]) per Stein JA with whom Davies AJA agreed (at [189]); see also (at [172]) Fitzgerald AJA.”

95 The appellants thus accepted that findings about apportionment of responsibility are not lightly to be disturbed: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [157] per Hayne J; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 493-494.

96 The nature of the task to be undertaken in making such an apportionment was stated in Podrebersek in the following terms (at 494) (omitting citations):

          “The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relevant importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case. …”

97 There is no doubt that the primary judge referred to these principles and purported to apply them. I have already set out at [41] his Honour’s findings in this regard. He concluded that the causal potency of the conduct of the first appellant and the respondent was equal. He made the same finding with respect to culpability.

98 With respect to the issue of culpability of the first appellant, namely, the degree of his departure from the standard of care of the reasonable man, his conduct was, as the respondent conceded, a matter of inadvertence in that he permitted his foot to slip from the brake to the accelerator thus causing the vehicle to lurch forward.

99 On the other hand, the respondent’s departure from the standard of care to which she was subject involved first, permitting an 11 year old to drive the vehicle in the first place and, second, standing immediately in front of the vehicle in circumstances when it must have been obvious to her that if the first appellant lost control of the vehicle in the manner in which in fact he did, she was inevitably going to be struck by it with some force.

100 In the respondent’s favour is the fact that she was aware that the first appellant had carried out the manoeuvre in question on previous occasions in his father’s vehicle without mishap. Nevertheless, in my view she unnecessarily and inappropriately placed herself in significant danger, particularly by standing in front of the vehicle. If she wished to provide directions to the first appellant, she could easily have done so by standing beside the vehicle, with the driver’s window down.

101 In the foregoing circumstances in my opinion, it was simply not open to the primary judge to find that the culpability of each of the first appellant and the respondent was equal.

102 The same comment applies to the causal potency of what occurred if only for the reason that causal potency relates to the relative importance of the acts of the parties in causing the damage. The factual considerations to which I have referred above apply equally to the determination of that question.

103 Taking account of the whole conduct of each of the first appellant and the respondent, in my opinion the present is a case that justifies appellate intervention upon the ground that the apportionment of 50/50 assessed by the primary judge was both unreasonable and unjust in the circumstances.

104 It follows from the foregoing that it is necessary for me to determine afresh an appropriate apportionment. Taking account of the factors to which I have referred, in my view the appellants’ submission that the respondent should be considered 80% responsible for her injuries should be accepted.


      CONCLUSION

105 In my opinion, each of the grounds of appeal advanced by the appellants should be rejected other than that with respect to the apportionment of liability between the first appellant and the respondent. Although it follows from the foregoing that the verdict and judgment in favour of the respondent against the appellants made by the primary judge must be set aside and a lower figure substituted, I see no reason to disturb the primary judge’s order that the appellants pay the respondent’s costs at first instance. So far as the costs of the appeal are concerned, the appellants have only succeeded on one out of five grounds of appeal and then only on the issue of contributory negligence. In my view the appellants should pay 80% of the respondent’s costs of the appeal.

106 I would therefore propose the following orders:


      (a) Appeal allowed in part.

      (b) Set aside the verdict and judgment of the District Court of 27 November 2009 in favour of the respondent against the appellants in the sum of $350,000 and substitute therefor a verdict and judgment for the respondent against the appellants in the sum of $140,000.

      (c) The appellants to pay 80% of the respondent’s costs of the appeal but to have a certificate under the Suitor’s Fund Act 1951 if otherwise qualified.

107 YOUNG JA: I agree with Tobias JA and the additional comments of Allsop P.

      **********
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