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%.