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." Having referred to that submission, his Honour found: "This combination of circumstances as they have been set out, makes for a justifiable conclusion that the son was driving for and on behalf of the father." As I understand his Honour's conclusion, it involved an acceptance of a proposition that there was a familial duty owed by the father towards his son which was satisfied in this instance by allowing his son to drive his car and that the existence of that duty in the circumstances constituted his son his agent, as that expression is understood in this particular branch of the law. The evidence upon which this finding was made was given by the appellant. It would seem to me that in this respect the appellant conceded that he had been persuaded by his wife to let his son have the use of his car for the purpose of driving to The Entrance to see some friends and go to a party there partly because it was his son's birthday. It may also be correct, although there is considerable doubt about 2 UNREPORTED JUDGMENTS this, that the appellant was influenced to some degree by the fact that his son had been studying hard for his examinations. This evidence does not go any further than showing that the appellant permitted his son to have the use of his vehicle for the son's own purposes. The fact that the son had been working hard and the request was made on his birthday might provide reasons for the giving of the permission, but they do not, in my opinion, provide any basis for concluding that the son's use of the vehicle was in furtherance of a purpose of the appellant. The evidence does not, in my opinion, go any further than showing that permission was given by the appellant to his son to use his vehicle for the son's own and sole purposes. If this is correct, then there is not any legal basis, in my opinion, for a conclusion that the appellant was responsible for his son's negligence, and his Honour was in error in reaching the contrary conclusion. Because this is, as it seems to me, a clear case it is unnecessary to examine in any depth the law in this particular area and, in particular, the extension of the principles of agency which were recognised in the judgment of Walsh JA in Jennings v Hannon (No 2) (1969) 71 SR 227. It is sufficient for my purposes to refer to the statement made by Fox J in Milkovits v Federal Capital Press of Australia Pty Ltd (1972) 20 FLR 311 at 316, noting that some doubts have been cast upon whether or not this statement takes the law too far in view of the fact that the judgment was given by Fox J before the House of Lords had reversed the decision of the Court of Appeal in Morgans v Launchbury and Ors ([1971] 2 QB 245; [1973] AC 127) (see Lansdown v W T H Pty Ltd (1990) 10 MVR 355 at 359). What Fox J said is this: "Tt seems to me that in a case such as the present the inquiry is whether at the time in question the car was being used with the permission of the owner for a purpose of his, it need not be for his purposes alone and it is not necessary that he should have proposed or adverted to the use of the car for the purpose or any of the purposes for which it was being used. If the authority he gave for the use of the car extended to its use for a purpose which was a purpose of his, that is sufficient." As I pointed out, the sole purpose for which the car was being used was to enable the appellant's son to proceed to The Entrance to see friends and go to a party. The appellant had no interest, in the relevant sense, in that purpose and I am unable to accept that it could be said that the vehicle was being used solely or partly for a purpose of the appellant. During his submissions counsel for the respondent referred the Court to a passage in the judgment of du Parcq LJ in Hewitt v Bonvin and Anor (1940) 1 KB 188 at 196. There his Lordship referred to the possibility that a parent acting under a perceived social or moral duty to enable guests of theirs to be taken to a railway station may become liable if, in satisfying that duty, they request their son to take the guests to the station. In that instance, however, the parents perceived an obligation to the guests, the satisfaction of which required that they be driven to a railway station. If one of the parents had driven the guests themselves they would, no doubt, have been responsible for any negligent driving. Likewise, as the purpose of journey was in a part a response to a perceived duty of the parents, if they requested their son to take the guests to the station, it could be argued that they should be liable for his negligence. But, in this case, there is no question that the son was satisfying some perceived duty owed by the parents to another person and I do not find that that authority supports the respondent. URJ SWEENEY v PHILLIPS (Samuels AJA) 3 In my opinion the appeal should be upheld, the judgment of Judge Walsh set aside, and in lieu thereof there should be judgment for the appellant, who was the first defendant in the court below and the respondent should be ordered to pay the costs at first instance of the appellant. The respondent should also pay the appellant's costs of the appeal and have a certificate under the Suitor's Fund Act as to those costs. Priestley JA I agree. Samuels AJA I also agree. PRIESTLEY JA: The Court's orders will be those proposed by Clarke JA. ORDERS The appeal should be upheld, the judgment of Judge Walsh set aside, and in lieu thereof there should be judgment for the appellant, who was the first defendant in the court below, and the respondent should be ordered to pay the costs at first instance of the appellant. The respondent should also pay the appellant's costs of the appeal and have a certificate under the Suitor's Fund Act as to those costs. Counsel for Appellant - P MORRIS Solicitors for Appellant - RILEY MARKS and McLACHLAN, Hornsby Counsel for Respondent - R E QUICKENDEN Solicitors for Respondent - C JAY and CO, Terrigal