SWEENEY v PHILLIPS [1992] NSWCA 246

SWEENEY v PHILLIPS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE JJA and SAMUELS AJA 13 July 1992, 13 July 1992

[1992] NSWCA 246

MOTOR VEHICLE ACCIDENT — AGENCY — PARENT AND CHILD Agency — motor vehicle accident — whether father allowing son to borrow father's car for son's purposes constituted agency evidence of son's birthday and his studying hard insufficient to show son's use of vehicle was for father's purposes — no legal basis for a finding that father responsible for son's negligence.

Clarke JA This is an appeal from a decision of Judge Walsh on 22 May 1989 in which he found in the respondent's favour against the appellant.

The case, as it had been originally constituted, was a claim by the respondent against two parties, one was the appellant, and the other was the appellant's son. The latter confessed to judgment and the case proceeded only as between the appellant and respondent. As I have indicated his Honour found in the respondent's favour. It is that judgment which is now in question.

The claim arose out of a motor vehicle accident between a vehicle owned by the respondent and a vehicle driven by the appellant's son. There is no question but that the appellant's son was negligence and for that reason he confessed to judgment.

The issue which arose in the proceedings which were litigated is whether the appellant was responsible for his son's negligence. It was the claim of the respondent that upon the facts of the case he had satisfied what has been described as the extended test upon which an owner of a car can be found liable for the negligence of the driver. His Honour, when putting the competing arguments adverted finally to an argument put by counsel for the respondent. In this respect his Honour said:

"The familial obligation of the father is carried out by enabling his son to use the vehicle, and he relies on that if, for instance, as here a father consents to his young son having the loan of his car for his birthday and as a reward for his working hard. In both instances this is the carrying out of a familial duty towards his son."