Thursday, April 17, 2008

One Saturday morning, 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 manoeuvre known as a ‘handbrake turn’. Prior to performing the manoeuvre, he warned the passengers about his intentions. One of his passengers Benjamin Pretorius was thrown clear of the bakkie and suffered grievous injuries.
Benjamin, assisted by his father, instituted consolidated actions against Albert’s father, Stephanus, in his representative capacity, for the damages caused by his son’s negligent driving and from Albert’s father in his personal capacity 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 found, too, that:
·         Albert’s father had exercised a power and duty to oversee the conduct of Albert and his friends
·         He had 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
·         Injury to the passengers had been a foreseeable consequence.
The Court concluded that Albert’s father 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. 
In considering whether Albert’s father (the appellant) had given permission to his son, the Supreme Court of Appeal (SCA) considered the insurance claim form that he had submitted to the insurer of the vehicle.
One of the form’s questions 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. The applicant contended that he had misunderstood the claim form’s question. 
Because of this contradiction the SCA decided to reconsider the evidence and the likelihood of the existence of an express prohibition. It first considered the value of the express prohibitions evidence of the appellant and his wife. The SCA then asked: Had it been proven that the appellant had been negligent in allowing Albert to drive the vehicle and that such negligence was causally connected to Benjamin’s injuries?
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 found that the following objective probabilities 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 since Albert was an honest, reliable and obedient son, 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.
Further, on a balance of probabilities, Albert in fact possessed his father’s permission to use the vehicle. Heher JA stated that while he did not know whether the consent was granted expressly, there was certainly an unspoken understanding between father and son 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 Benjamin’s injuries.
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, arguing that the conclusion did not follow the premise; that the performance 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 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 resultant damage was causally connected to the appellant’s negligence and this was sufficient to impose personal liability on the appellant.
The decision requires parents to take 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.
Pumzo Mbana is a Candidate Attorney at Bowman Gilfillan.