In Wessels v Pretorius 2007 JDR 0861 (SCA) the Supreme Court of Appeal (“SCA”) dealt with the negligence and personal liability of a father who had permitted his minor son to use his motor vehicle.

Securing the keys: A parent’s personal liability for failing to supervise a child By Pumzo Mbana of Bowman Gilfillan Attorneys

Introduction In Wessels v Pretorius 2007 JDR 0861 (SCA) the Supreme Court of Appeal (“SCA”) dealt with the negligence and personal liability of a father who had permitted his minor son to use his motor vehicle.

The facts On one afternoon Albert Wessels drove his father’s bakkie with four teenage passengers in the load bay. At the time, Albert was 16 years and 10 months old, and was an unlicensed driver. Albert performed a manouevre known as a ‘handbrake turn’. Prior to performing the manouevre, he warned the passengers about his intentions. One of his passengers Benjamin Pretorius was thrown clear of the bakkie and suffered grievous injuries.

Actions instituted at the High Court Benjamin, duly assisted by his father, instituted consolidated actions against Albert’s father, Stephanus Wessels, in his representative capacity for the damages caused by his son due to the negligent driving of the vehicle and from Albert’s father in his personal capacity, seeking to hold him liable because he negligently allowed Albert to drive the vehicle without supervision, when it was reasonably foreseeable that Albert would drive without reasonable care. The Court found that Albert had been negligent and that his negligence had been a contributing factor to the damages suffered by Benjamin. The court apportioned fault between Albert and Benjamin at 65:35. The court also found that Albert’s father exercised a power and duty to oversee the conduct of Albert and his friends on the day in question, that he allowed and perhaps encouraged Albert to use the vehicle when it was reasonably foreseeable that Albert would not exercise proper care in driving it and that injury to the passengers was a foreseeable consequence. When analysing the case against Albert’s father, the Court concluded that he had granted permission to Albert to drive the vehicle on the day in question. Albert’s father denied that he had given such permission to his son and appealed the decision of the court.

The appeal In considering whether Albert’s father (“the appellant”) had given permission to his son, the SCA considered the insurance claim form that he had submitted to the insurer of the vehicle. One of the questions contained in the insurance claim form was ‘Did the driver have your permission to drive the vehicle?’ To which the appellant had answered in the affirmative. Contrary to the information provided in the claim form the appellant testified that Albert not only drove the vehicle on the Saturday without his permission but also in spite of a standing instruction that he was not to use the vehicle without the appellant’s permission. In particular, on the Saturday morning of the incident Albert was expressly prohibited from using the vehicle. Regarding the contradictory answer given on the claim form, the appellant contended that he misunderstood the question. In light of this contradiction the SCA decided to reconsider the evidence and the likelihood of the existence of an express prohibition. The SCA first considered the value of the evidence of the appellant and his wife relating to the imposition of their respective express prohibitions. The SCA also considered whether it had been proven that the appellant had been negligent in allowing Albert to drive the vehicle and that such negligence was causally connected to the injuries suffered by Benjamin. Counsel for the appellant argued that the totality of the evidence given by the appellant, his wife and Albert outweighed or at least balanced the existence of the ‘admission’ on the claim form. In other words, the probabilities negated both the likelihood and the accuracy of such an admission. When dealing with the possibility that the probabilities negated the admission made in the claim form, Heher JA considered the value of the evidence of the appellant and his wife relating to the imposition of their respective express prohibitions. These are some of the objective probabilities the court found weighed against Albert’s parents:

• The appellant did not plead an express prohibition against Albert driving the motor vehicle;
• The appellant did not inform the insurance representative that there was an express prohibition;
• The evidence of the appellant and his wife was that Albert was an honest, reliable and obedient son, consequently it seemed highly unlikely that he would deliberately have flouted express instructions which either or both parents had only hours before impressed on him;
• If there was a firm, clear and immutable standing rule governing the use of the vehicle then an express prohibition served no purpose, given that neither parent had reason to think Albert would disobey the rule.

The court found that these probabilities pointed towards consent, as they strengthened the likelihood that the appellant’s statement in the insurance claim form was correct. The court found that on a balance of probabilities, Albert in fact possessed his father’s permission to use the vehicle. Heher JA stated that he did not know whether the consent was granted expressly. However, there was certainly an unspoken understanding between father and son which was sufficient to overcome the limitation of the absence of evidence of an express consent. The respondent had to prove that the appellant was negligent in allowing Albert to drive the vehicle and such negligence was causally connected to the injuries suffered by Benjamin. Counsel for the appellant argued that both parents knew Albert to be a competent driver and that the conduct which gave rise to the claim was not reasonably foreseeable by them in the circumstances. The court disagreed, stating that the conclusion does not follow the premise. The court was of the view that the performing of the stunt did not detract from Albert’s skill as a driver. Also, it did not per se matter that Albert was not in possession of a licence to drive on public roads. The court stated “the appellant’s negligence lay rather in giving an unrestricted access to the vehicle to a boy who lacked both maturity and judgment in circumstances it should have been obvious that peer pressure might adversely influence his decisions in driving that vehicle….. Such abandonment of control is culpable and the person who allows it is liable for damage which results. ”The court held that the respondent had succeeded in proving that the appellant negligently made his vehicle available to his son in circumstances in which he ought to have foreseen that his son might use it to cause harm to himself or others. The damage which resulted was causally connected to the appellant’s negligence and this was sufficient to impose personal liability on the appellant.

Conclusion This decision requires parents to take prudent steps reasonably necessary to prevent their children from exposing others to injury. In this case the father could have either withheld consent or secured the keys to the vehicle. Failure to take reasonable steps in similar circumstances may expose parents to personal liability for the conduct of their children.