Are you liable for the negligence of your designated driver? The short answer is yes, if it is your car and you are a passenger!

Surprisingly, this dates back to horses and buggies, and servants and Masters (Chandler v Broughton, 1832). Mr Broughton's rig, driven by his servant crashed into a church, with the court stating:

"Is there any case which militates against this position; that if the owner is in the carriage, sitting by the driver, the act of driving by the servant is the act of the master? The reason is that the master has immediate control over the servant."

Over 100 years later, the High Court in Soblusky v. Egan (1960) 103 CLR 215 considered a case where Mr Lewis was driving Mr Egan's 1938 Ford to a meeting of the Royal Antediluvian Order of Buffaloes. Mr "Soblusky who was sitting next to Lewis asked him if he minded if he went to sleep". Mr Lewis ran into a guide post while Mr Soblusky was having his nap.

The High court, finding Mr Soblusky liable, held that:

"It means that the owner or bailee being in possession of the vehicle and with full legal authority to direct what is done with it appoints another to do the manual work of managing it and to do this on his behalf in circumstances where he can always assert his power of control. Thus it means in point of law that he is driving by his agent.

It appears quite immaterial that Soblusky went to sleep. That meant no more than a complete delegation to his agent during his unconsciousness. The principle of the cases cited is simply that management of the vehicle is done by the hands of another and is in fact and in law subject to direction and control."

In another High Court decision Scott v Davis (2000) HCA 52 Justice Gummow, who was critical of the decision in Soblusky, referred to English authorities that:

"...appear to introduce a new type of agent, who is not an employee, nor an independent contractor; rather, it is 'one whose job is not to make contracts but to do such favours as driving cars for his temporary principal'."

Justice McHugh commented that:

"Soblusky can fairly be seen as a case of the 'owner' of a vehicle delegating a task to the driver for the owner's purposes."

Generally, an employer is liable for its employees' driving and a principal is liable for its agents' driving. Additionally, if you are the owner or bailee of the car, you are in the car at the time of the accident and the driver was 'doing a favour and driving for your purposes' then you could also be liable for damage caused by the driver.

If you have a query relating to any of the information in this piece, or you would like to speak with someone in Holman Webb's General Insurance team with respect to a matter of your own, please don't hesitate to get in touch today.