The plaintiff allowed her 11-year-old son to park her car in the family garage. She stood directly in front of the car while her son drove it several metres into the garage. Unfortunately, he lost control of the car and ran over his mother, causing her serious injuries.

 


The plaintiff sued her son for damages. That action was defended on the basis that the 11-year-old driver didn't owe the plaintiff a duty of care or, if there was a duty, it was so limited that the boy's failure to control the car did not amount to a breach of his duty. Essentially the defence was that the plaintiff had only herself to blame and that it was her negligence in allowing her young son to drive her car which was the cause of her injuries.

 

That defence was rejected by the trial judge who relied on High Court authority to find that a driver of a motor vehicle of any age owes a duty of care. It was held that the plaintiff was entitled to expect a small degree of driving competence from her son given that he had previously parked his father's car in the garage on several occasions without incident. It was held that the boy breached his duty of care to his mother by allowing his foot to slip off the brake pedal. The trial judge found that the boy and his mother were equally culpable and reduced the damages by 50% for contributory negligence.


 

The New South Wales Court of Appeal upheld this decision but increased the plaintiff's contributory negligence to 80%.

 

This case serves as a reminder that anyone operating a vehicle (even an 11 year old child!) owes a duty of care and that courts will very seldom find contributory negligence of 100% (which the defence had argued was appropriate in this case).