Lloyd v Ryan Borg by his Tutor NSW Trustee and Guardian

[2013] NSWCA 245

NSW Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Vicarious liability
3. › Liability of vehicle owner for acts of another
4. › Owner not present and unaware of vehicle's use
5. › De facto wife permitted to use vehicle in domestic context
6. › Whether owner vicariously liable for negligence of person with permission to use vehicle
7. › Soblusky v Egan (1960) 103 CLR 215
8. › Scott v Davis (2000) 204 CLR 333
1. Torts
2. › Vicarious liability
3. › Control as basis for vicarious liability
4. › Requirement of real and continuing power of effective intervention
5. › Whether general permission to use vehicle in domestic setting constitutes sufficient control
6. › Distinction between domestic and commercial contexts
1. Torts
2. › Vicarious liability
3. › Coherence of common law and statute
4. › Motor accidents compensation legislation
5. › Whether common law should be expanded to fill gap in statutory scheme
6. › Motor Accidents Compensation Act 1999 (NSW)
1. Agency
2. › Ostensible authority
3. › Distinction between agency in contract and agency in tort
4. › Whether permission to use chattel in domestic context constitutes ostensible authority

Quick Take

The Soblusky v Egan principle of vicarious liability for vehicle owners does not extend to a purely domestic context where the owner is absent, unaware of the vehicle's use, and has not requested or directed the driving. General permission to a family member to use a vehicle does not constitute the appointment, engagement or request, nor the real and continuing power of effective control, required to establish vicarious liability. The concept of ostensible authority from contractual agency is inapplicable to vicarious liability in tort in domestic settings. Where a detailed statutory motor accidents compensation scheme contemplates gaps, the common law should not be expanded to fill them.