Child injured in crash: occupier’s breach of duty or parent’s failure to supervise?
March 16, 2012
Simpson v Grundy & Anor  QSC 299
In this case the Queensland Supreme Court held an occupier was not liable for injuries to the plaintiff (a minor), as he was entitled to rely on the supervision of ‘people who had more responsibility for the plaintiff’s care’. The claim was argued by the plaintiff as a case of occupier’s liability, however, the court held the claim to be based on an allegation of failing to supervise.
The occupier, Mr Grundy, owned a rural property. He had resided there with Mrs Isles for many years. Mrs Isles’ 17 year old granddaughter, the plaintiff, had frequently visited and was familiar with the property.
On Christmas Day 2005 a family luncheon was held at the property. Mr Grundy, Mrs Isles, the plaintiff, her stepfather, mother, and her younger siblings attended. Following the main course, the plaintiff sought permission to take her 14 year old brother for a drive in a car kept on the property.
The court accepted evidence that Mrs Isles and the plaintiff’s stepfather both specifically warned the plaintiff to ‘…make sure you don’t do anything silly and drive sensibly’.
The plaintiff drove a short distance on an internal dirt road before overturning the car and sustaining injury. The accident occurred because the plaintiff drove too fast.
It was uncontroversial that the dirt road was not in a dangerous state, the car was in good repair, and there was no suggestion that anyone was affected by alcohol.
It was also accepted, based on the evidence of the plaintiff’s parents, that the plaintiff was a competent and sensible learner driver with about 30 hours experience, including experience in driving on dirt roads.
The plaintiff brought proceedings against the occupier alleging, in essence, that he had failed to supervise her by preventing her driving.
The parties agreed the quantum of damages at $200,000, making no allowance for contributory negligence which remained in issue.
Justice Dalton held that this was not, as the plaintiff claimed, a case of occupier’s liability as there was no suggestion that either the property or the car was in a dangerous condition.
In Her Honour’s view, the claim was one for failing to supervise the plaintiff. She found that there was a reasonably foreseeable risk of the young unaccompanied plaintiff injuring herself if she drove an unfamiliar car on a dirt road. It was not an insignificant, farfetched or fanciful risk.
However, although Justice Dalton found that Mr Grundy, having authority to forbid the plaintiff from driving, owed the plaintiff a duty of care, he did not breach that duty as he was entitled to assume that the plaintiff’s stepfather and Mrs Isles, her grandmother, both of whom had more responsibility for her care, more knowledge of her driving ability, and character, were acting responsibly in the plaintiff’s interests.
Justice Dalton applied Justice Windeyer’s reasoning in the High Court decision of McHale v Watson that the control of a child is commonly regarded as the responsibility of his or her parents. While Mr Grundy stood in an avuncular role to the plaintiff, he was entitled to recognise that her stepfather and grandmother were more closely connected to the plaintiff than he was, and more closely responsible for her care and safety than he was.
In reaching this decision, Her Honour considered the following factors mitigated against breach by the occupier:
- The plaintiff had sought permission, in an informal manner consistent with her age, and if the plaintiff’s stepfather had any concerns about her driving he would have objected
- Many country teenagers drive on private properties before they are old enough to obtain a licence, and therefore when the plaintiff proposed going for a drive, she was not proposing something unusual
- The plaintiff’s stepfather and grandmother allowed her to drive and both warned her to take care while doing so
- Mr Grundy was presumed to have knowledge that there was a serious risk of injury to someone involved in a motor vehicle accident.
Her Honour accepted that if the plaintiff had proposed to do something plainly dangerous on his land, Mr Grundy had a duty to forbid it, whatever attitude was taken by the plaintiff’s stepfather and grandmother. However, having regard to everything else he knew, such as the good condition of the car and the good condition of the dirt road, he could not have foreseen the risk of a motor vehicle accident in the circumstances.
Despite finding that Mr Grundy did not breach his duty of care, the trial judge addressed contributory negligence to allow for the possibility her primary finding on liability was overturned on appeal.
On this issue, three factual matters arose being: deliberate act, speed and failure to wear a seatbelt. Her Honour noted it relevant that the plaintiff was 17 years old, was specifically warned to drive sensibly immediately before commencing, and that she ignored a reminder by her younger brother to wear the seatbelt.
Justice Dalton said that had the plaintiff been a mature adult it would have been appropriate to reduce the verdict by 25% for the failure to wear a seatbelt and a further 25% for speeding, a total of 50%. However, the plaintiff’s age mitigated her failures so it was appropriate to reduce each count to 15% in, a total of 30%.
The judgment is consistent with the decisions of the High Court in David Jones (Canberra) Pty Ltd v Stone and the Queensland Court of Appeal in Hetherington v Belyando Shire Council & Anor. The courts have again accepted that in circumstances where a claim is brought against an occupier for failing to respond reasonably to a risk of injury to a child, the protection the child may be expected to receive from its parental guardian must be considered when determining whether the occupier has breached its duty of care.
Thus occupiers may successfully defend this class of claim if it can be demonstrated that, having regard to the obligation of the parents to supervise their child, the reasonable response to the risk was to do nothing.
Authored by Moray & Agnew. For further information please email: firstname.lastname@example.org
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