Scott v Davis

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, HAYNE AND CALLINAN JJ

TRAVIS KANE SCOTT & ORS                  APPELLANTS

AND

GEOFFREY ARTHUR DAVIS  RESPONDENT

Scott v Davis [2000] HCA 52
5 October 2000
A16/1999

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of South Australia

Representation:

W J N Wells QC with A L Tokley for the appellants (instructed by Johnston Withers)

D M Quick QC with K G Nicholson for the respondent (instructed by Thomson Playford)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Scott v Davis

Negligence – Vicarious liability – Agency – Whether owner of aircraft vicariously liable for negligence of person who flew aircraft with owner's consent for a social purpose connected with owner.

Negligence – Vicarious liability – Aircraft – Motor vehicles – Negligent use of chattel of conveyance – Whether the principles in Launchbury v Morgans [1973] AC 127 apply – Non-delegable duties of care – Strict liability.

1. GLEESON CJ.   The issue in this appeal is whether the respondent, the owner of a light aeroplane which crashed as a consequence of the negligence of the pilot, is vicariously liable for such negligence.

2. The pilot was killed in the crash.  One of the appellants, who was a passenger, and who was being taken for a joy-ride, was seriously injured.  The other appellants, the parents of the passenger, suffered nervous shock. 

3. A claim that the respondent was personally negligent in relation to the circumstances surrounding the flight was unsuccessful at the trial, and was not pursued in this Court.  The pilot was regarded by the respondent as competent. An allegation of carelessness in entrusting the control of the aeroplane to him was considered and rejected.  The present appeal has been argued on the basis that the respondent was not personally at fault.

4. The facts are set out in the judgment of Gummow J.  The principle upon which the appellants rely for their contention that those facts give rise to vicarious liability in the respondent is elusive.  There are a number of reasons for that.  They include the protean nature of the concept of agency, which bedevils this area of discourse.  In the leading English case on the subject[1], Lord Wilberforce made the point that to describe a person as the agent of another, in this context, is to express a conclusion that vicarious liability exists, rather than to state a reason for such a conclusion.  Nevertheless, some judges refer to agency as a criterion of liability, similar to employment.  If that is to be done, it is necessary to be more particular as to what is meant.

   [1]Launchbury v Morgans [1973] AC 127 at 135.

5. It is not contended that the respondent was subject to a non-delegable duty of care, or that he authorised or ratified a negligent act of the pilot.  Those possible grounds of liability may be put to one side.

6. A claim that an owner or a bailee of a chattel is vicariously liable for the negligence of another person who has the temporary management of the chattel, even when that other person is not an employee of the owner or bailee, is a familiar feature of modern litigation.  It forms the foundation of many actions for damages for personal injury, or for injury to property, arising out of the use of a motor vehicle.  In personal injury cases, such a claim is commonly supported by a statutory presumption which, in turn, forms part of a scheme of compulsory insurance[2].  Where there is no such statutory presumption, the claim requires the support of a principle of common law.

   [2]See Trindade and Cane, The Law of Torts in Australia, 3rd ed (1999) at 733-734.

7. Whatever the principle is, even though the most common occasion for its application is, nowadays, the negligent driving of motor vehicles, it cannot apply only in respect of motor vehicles.  There are three reasons for that.

8. First, even though the line of authority which the more recent cases profess to follow may provide an insecure foundation for some of the propositions enunciated in those cases, the earlier authorities relied upon were concerned with horse-drawn carriages which, at the time, provided commonplace examples of chattels which, if negligently managed, could cause harm to third parties.  As was pointed out in Soblusky v Egan[3], the law governing the vicarious responsibility of the owner or bailee of a motor vehicle for the negligence of its driver was established in horse and buggy days[4].  Horse-drawn conveyances still exist.  The law concerning them did not cease to apply with the invention of the motor vehicle.  Furthermore, as the judgment of Jordan CJ in Christmas v Nicol Bros Pty Ltd[5] demonstrates, cases about ships and railway trains have involved the same issue.  In 1975, the Supreme Court of Ireland divided on the principle to be applied to the case of a negligently managed teapot[6].

   [3](1960) 103 CLR 215 at 229 per Dixon CJ, Kitto and Windeyer JJ.

   [4]The word used was "settled", but that may be an exaggeration.

   [5](1941) 41 SR (NSW) 317.

   [6]Moynihan v Moynihan [1975] IR 192.

9. Secondly, the leading Australian and English cases are inconsistent with the suggestion that there is a special principle of common law applying to motor vehicles.  As was noted, the rule applied in Soblusky v Egan[7] was traced back to horse and buggy days.  In Launchbury v Morgans, Lord Wilberforce denied that a special rule applied to motor cars, and expressed the rule to be applied as one relating to chattels generally[8].  So did Lord Cross of Chelsea[9]. 

   [7](1960) 103 CLR 215.

   [8][1973] AC 127 at 135.

   [9][1973] AC 127 at 144-145.

10. Thirdly, as a number of their Lordships pointed out in Launchbury v Morgans[10], to create a special rule for motor vehicles is a legislative, not a judicial, function.  There is no legitimate basis upon which a court, in declaring the common law, can conclude that there is one rule for motor vehicles and a different rule for horse-drawn carriages, railway trains, motor boats, sailing vessels, or aeroplanes.  Legislatures may draw, and have drawn, such distinctions, but that illustrates the difference between legislation and judicial development of the principles of the common law[11].

    [10][1973] AC 127 at 136-137 per Lord Wilberforce, 142-143 per Lord Pearson,

    [11]cf McLoughlin v O’Brian [1983] 1 AC 410 at 429-430 per Lord Scarman.

11. The principle by which the existence of vicarious liability is to be determined is to be distinguished from evidentiary considerations concerning the facts relevant to the application of the principle.  The nature of the chattel in question, or, if it be a motor vehicle, the nature of the motor vehicle, or the nature of the occasion of its use, may be significant for the purpose of drawing inferences as to the relationship between an owner or bailee and a person for whose negligence the owner or bailee is claimed to be responsible[12].  However, such considerations are immaterial in the present case, where the facts as to the relationship between the respondent and the pilot of the aeroplane are known.

    [12]This matter is discussed in Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 and Jennings v Hannan (No 2) (1969) 71 SR (NSW) 226.

12. In Soblusky v Egan[13] the bailee of a motor vehicle was a passenger in the vehicle, asleep, when negligence of the driver resulted in the damage the subject of the action.  The bailee was held by this Court to be vicariously responsible for the driver's negligence.  The principle upon which that conclusion was based was said to be drawn from a long line of authority, including the decision of the Privy Council in Samson v Aitchison[14].  The Court said[15]:

    "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 the management of the vehicle is done by the hands of another and is in fact and law subject to direction and control.  This therefore must be regarded as an obvious case."

    [13](1960) 103 CLR 215.

    [14][1912] AC 844.

    [15](1960) 103 CLR 215 at 231 per Dixon CJ, Kitto and Windeyer JJ.

13. Some years earlier, in Christmas v Nicol Bros Pty Ltd[16], in the Supreme Court of New South Wales, Jordan CJ said, delivering the judgment of the Court, in a case concerning a motor vehicle:

    "If a person sustains physical injury to himself or his property through the negligent use of an article by another person, it is the user of the article who is liable in tort.  Its owner is not liable as such; but he too incurs liability if, for example, it is established that the user was his employee, and that the use was in the course of his employment.  If so, his ownership is of itself irrelevant to his liability, which is vicarious and arises out of the relationship of master and servant …  As an exception, however, to the general rule, in the special case of a vehicle plying for hire in a public street or used there for the conveyance for hire of passengers or goods, the owner is in New South Wales liable as well as the driver, by virtue of ss 4 and 260 of the Transport Act, 1930 …  But, save in this special case, in order to fix with vicarious liability a person other than the negligent driver himself, it is necessary to show that the driver was at the time an agent of his, acting for him and with his authority in some matter in respect of which he had the right to direct and control his course of action.  If this is proved, liability is established on the part of the other person, and it is immaterial whether he is the owner of the vehicle or has begged, borrowed or stolen it."

    [16](1941) 41 SR (NSW) 317 at 319-320.

14. The reference to the right to direct and control the driver's course of action cannot be taken to include a reference to a right which is not, in practice, capable of being exercised.  So understood, the passage is consistent with Soblusky v Egan.  It may be noted that Jordan CJ did not merely apply the question-begging label "agent"; he went on to explain what he meant by it.

15. In the present case, the Court was not invited to depart from Soblusky v Egan.  However, that decision does not assist the appellants.

16. The pilot was not the agent of the respondent in the sense explained in the above passages.  At the time of the pilot's negligent act, the respondent was not in a position to assert a power of control over the manner in which the pilot was flying the aeroplane.  The pilot was neither in fact, nor in law, subject to his direction and control at the critical time.

17. The appellants contend for a principle wider than that accepted and applied in Soblusky v Egan.  The principle, they say, is to be found in
    

    [17][1973] AC 127.

    [18][1940] 1 KB 188.

    [19][1953] 1 WLR 409; [1953] 1 All ER 711; [1953] 1 WLR 1120; [1953] 2 All ER 753.

    Launchbury v Morgans[17], and in earlier cases such as Hewitt v Bonvin[18] and Ormrod v Crosville Motor Services Ltd[19].  In its application to the present facts, it is said to be that, even if the pilot was not under the respondent's control at the time of the accident, he was using the aeroplane at the respondent's request and for the respondent's purposes, and on that ground the respondent is vicariously liable.

18. I am unable to accept that there is a principle of such width.  There are a number of objections to it.  First, as the reasons of Gummow J demonstrate, it has no adequate foundation in authority.  Secondly, it is impossible to reconcile with the general rule that a person is not vicariously liable for the negligence of an independent contractor.  An independent contractor may be using an article at another's request and for the other's purposes, but the other is not ordinarily responsible for the contractor's negligence.  Thirdly, the criterion of application of the principle is ill-defined and likely to be capricious in its operation.  There are many circumstances, in which the owner or bailee of a chattel may request or permit another person to use or operate it, which do not yield readily to classification according to whether a purpose of the owner or bailee is being served.  The difficulties which have been experienced in deciding whether a motor car, available for the use of a number of family members, is, on a particular occasion, being used for a purpose of the owner, illustrate the point.  The unsuccessful attempt to develop a special doctrine for the family car is a reflection of those difficulties.  In a social setting, judgments formed on the basis of assigning purposes can be artificial and contrived.

19. In Launchbury v Morgans[20], Lord Wilberforce spoke of the use of a chattel, such as the driving of a car, "under delegation of a task or duty".  There may be cases in which the driver of a motor vehicle is to be regarded as the representative of an owner or bailee who has no immediate control over the vehicle, in circumstances which make the owner or bailee liable on the same principle as was applied to an independent contractor in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd[21].  The present is not such a case.  All that the pilot did was to render, on a social occasion, a voluntary service at the request of the respondent.  He was not a representative or delegate of the respondent.

    [20][1973] AC 127 at 135.

    [21](1931) 46 CLR 41.

20. The wider principle for which the appellants contend should not be accepted in this country.

21. On the findings of fact made by the trial judge, the respondent did nothing wrong.  There is no principle upon which he can be made vicariously responsible for what the pilot did.  The appeal should be dismissed with costs.

22. McHUGH J.   The owner of a motor vehicle is liable for the negligent conduct of a driver when the owner is present in the vehicle – even if he is asleep when the conduct occurs[22].  The first appellant was injured as the result of the negligent flying of a two seater aeroplane.  His father had asked the owner of the plane whether the first appellant could be given a ride in the plane.  The owner agreed but got a licensed pilot to fly the plane.  The owner remained on the ground without any means of directing or instructing the pilot during the flight.  Is the owner liable for the negligence of the pilot?  That is the ultimate issue in this appeal which is brought against an order of the Full Court of the South Australian Supreme Court setting aside a verdict of the District Court of that State holding the owner liable for the consequences of the negligence.

    [22]Samson v Aitchison [1912] AC 844; Soblusky v Egan (1960) 103 CLR 215.

23. In my opinion, the District Court was correct in finding that the owner was liable for the pilot's negligence.  That is because the owner had delegated to the pilot a task which the owner had agreed to perform, the pilot was not acting as an independent principal but was subject to the owner's general direction and control, and the pilot was acting within the scope of the authority conferred on him by the owner.  The pilot was therefore an agent for whose negligence the owner was responsible.

    The factual background

24. The injury to the first appellant occurred in 1990 while the three appellants were at the respondent's property in the Barossa Valley to celebrate the birthday of the respondent's daughter.  The first appellant is the son of the second and third appellants and the nephew of the respondent, who was the owner of the plane.

25. On the property, the respondent had several planes and an airstrip.  During the day in question, the second appellant and another man asked the respondent, an amateur pilot, whether their children could be flown in one of the respondent's planes.  The respondent said that he would think about it.  Later, he asked his wife to ask a Mr Bradford, another guest, if he would take the boys on a flight.  Mr Bradford later took the first appellant up in a two seater Aeronca plane, owned by the respondent.  After taking off, the plane crashed, killing Mr Bradford and injuring the first appellant.

26. The first appellant sued the respondent in negligence and for breach of statutory duty in respect of the injuries that he suffered in the crash.  The second and third appellants also sued the respondent for negligence and breach of statutory duty to recover the economic and non-economic losses they claimed to have suffered as a result of the crash.

    The decision of the trial judge

27. The trial judge held that Mr Bradford was negligent and that his negligence caused the crash.  His Honour made no findings in respect of the cause of action for breach of statutory duty.  That cause of action is no longer relevant.  In determining whether the respondent was liable for Mr Bradford's negligence, the trial judge held that "[n]either the relationship of master and servant, nor that of principal and agent on contractually agreed terms existed".  However, the learned trial judge said that, in addition to the master/servant and principal/agent categories:

    "[T]here are a number of situations in which, in tort, one person may be liable for the acts of another, quite independently of any contract between them.  Of present relevance are the so-called 'motor cases'." 

28. His Honour held that the present case was one where the owner was liable for the tort of the pilot because the pilot was his agent.

    The decision of the Full Court of the South Australian Supreme Court

29. By majority[23], the Full Court of the South Australian Supreme Court allowed the appeal and set aside the judgment of the trial judge[24].  The majority judges accepted that, where the negligence of the driver of a motor vehicle causes damage, the owner will be liable for that negligence if two elements are present: (1) a request by the owner that the driver use the vehicle and (2) an interest by the owner in the purpose for which the vehicle is being driven[25].  However, their Honours thought that "the better approach is to confine the wider approach to vicarious liability to cases involving motor vehicles"[26].  As the negligence in this case involved the use of a plane, they held that the respondent was not liable for Mr Bradford's negligence.  Millhouse J dissented on the ground that it was not logical to distinguish between liability for the negligent driving of a motor vehicle and liability for the negligent flying of an aeroplane[27].

    [23]Doyle CJ and Nyland J; Millhouse J dissented.

    [24]Davis v Scott (1998) 71 SASR 361 at 382-383.

    [25]Davis v Scott (1998) 71 SASR 361 at 375-376.

    [26]Davis v Scott (1998) 71 SASR 361 at 376.

    [27]Davis v Scott (1998) 71 SASR 361 at 386-387.

    The issues

30. Given the approach of the trial judge and the judges in the Full Court of the Supreme Court of South Australia, three principal issues arise.  First, is a principal liable only for those wrongful acts of the agent which he or she has authorised, instigated or ratified?  Second, if that is the general rule, is there an exception in respect of the liability of owners concerning the use of their motor vehicles?  Third, if the exception exists, should it be confined to motor vehicles?

31. Many modern writers on agency would contend that each of these three questions should be answered in the affirmative.  Thus, the learned authors of Bowstead and Reynolds on Agency[28] summarise the law of vicarious liability as follows:

    "(1)     If an agent is the servant of his principal, the principal is liable for loss or injury caused by the wrongful act of the agent when acting in the course of his employment.

    (2)      A principal is liable for loss or injury caused by the tort of his agent, whether or not his servant, in the following cases:

    (a)if the wrongful act was specifically instigated, authorised or ratified by the principal;

    (b)if the wrongful act amounts to a breach by the principal of a duty personal to himself, liability for non-performance or non-observance of which cannot be avoided by delegation to another;

    (c)(perhaps) in the case of a statement made in the course of representing the principal made within the actual or apparent authority of the agent: and for such a statement the principal may be liable notwithstanding that it was made for the benefit of the agent alone and not for that of the principal." (emphasis added)

    [28]Reynolds, Bowstead and Reynolds on Agency, 16th ed (1996) at 502 (footnotes omitted).

32. According to this formulation, a principal is not generally liable for the wrongful act of an agent who is not a servant unless the principal directly instigated, authorised or ratified that act.

33. Like their English counterparts, text writers in Australia have doubted that in Australia, cases involving motor vehicles aside, a principal is vicariously liable for the acts of his or her agent done on his or her behalf and within the scope of the agent's authority. The general academic view[29] in Australia appears to be that:

    (1)an employer is vicariously liable for the actions of its employees within the course of employment;

    (2)a principal is not generally vicariously liable for the actions of its independent contractors; and

    (3)the "principal/agent" concept is not useful when discussing vicarious liability for tort.

    [29]See eg Balkin and Davis, Law of Torts, 2nd ed (1996) at 745-746; Fleming, The Law of Torts, 9th ed (1998) at 413-414.  But a contrary view is taken in Trindade and Cane, The Law of Torts in Australia, 3rd ed (1999) at 732-733.

34. In my view, however, an analysis of the authorities justifies the conclusion that a principal is also liable for the wrongful acts of an agent where the agent is performing a task which the principal has agreed to perform or a duty which the principal is obliged to perform and the principal has delegated that task or duty to the agent, provided that the agent is not an independent contractor.  The principal is also liable for the wrongful acts of a person who is acting on the principal's behalf as a representative and not as an independent principal and within the scope of the authority conferred by the principal.

35. For a number of reasons, I do not regard the passage in Bowstead and Reynolds as a complete statement of the circumstances in which a principal may be liable for the wrongful acts of an agent.  First, it fails to take account of numerous statements by eminent common lawyers which suggest a wider liability than that expressed in that passage.  Second, it cannot be reconciled with the many cases that hold that the owner of a motor vehicle may be liable for the negligence of a driver who is not the owner's servant[30].  Third, it fails to take into account that many persons over whom an employer has no right of physical control are no longer classed as independent contractors for whose conduct the employer is not responsible.  This has had the result that the employer is liable for many a wrong that in earlier times would have been classed as the wrong of an independent contractor.  Fourth, it seems premised on the view – which I do not accept[31] – that, after the decision in Quarman v Burnett[32], a principal was ordinarily liable for an agent's torts only when the agent was a servant.  Fifth, in so far as sound legal policy requires that a principal should be liable for the conduct of an agent who is a servant in the common law sense, that policy also requires that the principal should be liable for the conduct of an agent who is not an independent contractor and who acts on behalf of the principal in performing tasks or duties which the principal has delegated to the agent.  That policy also requires that the principal should be liable where the agent is acting as the representative of the principal rather than as an independent actor.

    A principal is liable for the unauthorised acts of an agent acting as the representative of the principal and within the scope of his authority

    [30]See eg Samson v Aitchison [1912] AC 844; Parker v Miller (1926) 42 TLR 408; Mortess v Fry [1928] SASR 60; Ormrod v Crosville Motor Services Ltd [1953] 1 WLR 1120; [1953] 2 All ER 753; Trust Co Ltd v De Silva [1956] 1 WLR 376; Soblusky v Egan (1960) 103 CLR 215; Gosson Industries Pty Ltd v Jordan [1964] NSWR 687; Jennings v Hannan (No 2) (1969) 89 WN (Pt 2) (NSW) 232.  See also Hewitt v Bonvin [1940] 1 KB 188; Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317; Manawatu County v Rowe [1956] NZLR 78; Rambarran v Gurrucharran [1970] 1 WLR 556; [1970] 1 All ER 749; Morgans v Launchbury [1973] AC 127.

    [31]cf Trindade and Cane, The Law of Torts in Australia, 3rd ed (1999) at 732-733 who state that the "basic rule is that a person is vicariously liable for the torts of an agent" and that an agent "may be a servant or an independent contractor or neither."

    [32](1840) 6 M & W 499 [151 ER 509].

36. Servants were, but agents were not, known to the early common law[33], the notion of responsibility for an agent being a comparatively late starter in the common law.  From the end of the 17th century, however, some of the greatest common lawyers that the law has known have accepted that a principal may be liable for the unauthorised acts of an agent provided that the agent was acting within the scope of his authority or employment[34].  They have accepted that a principal may be liable for the improper mode of performing acts that are within the authority of the agent, irrespective of whether the principal authorised the improper mode of carrying out the act in question and even if the principal has forbidden the wrongful act.  Before 1840, professional opinion may have gone so far as to accept that a principal might be liable for the wrongful conduct of any person when the conduct occurred in the course of doing work for the benefit of the principal.  Thus, in Bush v Steinman[35], Heath J said "where a person hires a coach upon a job, and a job-coachman is sent with it, the person who hires the coach is liable for any mischief done by the coachman while in his employ, though he is not his servant".  This view of the law was accepted by other common law judges[36].

    [33]"As late as Blackstone, agents appear under the general head of servants": Oliver Wendell Holmes Jr, The Common Law, (1882) at 228.  See also Oliver Wendell Holmes Jr, "Agency", (1891) 5 Harvard Law Review 1 at 9.

    [34]In Lloyd v Grace, Smith & Co [1912] AC 716 at 726-727, the Earl of Halsbury was of the view that the law had been clear for more than two centuries and never doubted.

    [35](1799) 1 Bos & Pul 404 at 409 [126 ER 978 at 980], a decision which the English Report states was "overruled" by Reedie v London and North Western Railway Co (1849) 4 Ex 244 [154 ER 1201].

    [36]See, for example, the judgments of Holroyd and Bayley JJ in an equally divided court in Laugher v Pointer (1826) 5 B & C 547 [108 ER 204]; Brady v Giles (1835) 1 M & Rob 494 [174 ER 170] and Randleson v Murray (1838) 8 Ad & E 109 [112 ER 777].

37. But in 1840 in Quarman v Burnett[37], the law was finally settled.  Ordinarily, a person is not liable for the negligence of another if the latter was what we now call an independent contractor.  In Quarman, the defendants, "two old ladies"[38], had been hiring a horse, carriage and driver from a third party for some years.  In more recent times, they had supplied their own carriage and provided a coat and hat for the driver.  Through the driver's negligence, the plaintiff sustained personal injury.  The Court of Exchequer held that the defendants were not liable for the driver's negligence.  Mr Baron Parke gave the judgment of the Court.  He held that the defendants were not liable for the acts of the driver "on the simple ground, that the servant is the servant of another, and his act the act of another"[39].  Liability was in the master "who had selected him as his servant, from the knowledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey"[40].

    [37](1840) 6 M & W 499 [151 ER 509].

    [38](1840) 6 M & W 499 at 505 [151 ER 509 at 512].

    [39](1840) 6 M & W 499 at 509 [151 ER 509 at 514].

    [40](1840) 6 M & W 499 at 509 [151 ER 509 at 513-514].

38. The defendants could only be liable, therefore, on the basis of "a different and more extended principle, namely, that a person is liable not only for the acts of his own servant, but for any injury which arises by the act of another person, in carrying into execution that which that other person has contracted to do for his benefit"[41].  Mr Baron Parke rejected the existence of such a principle.

    [41](1840) 6 M & W 499 at 510 [151 ER 509 at 514].

39. However, nothing in Quarman denied that a principal could be liable for the wrongful acts of a person who was a representative or delegate of the principal rather than an independent contractor.  And the view that a principal may be liable for the conduct of an agent who is not a servant has been championed by many distinguished lawyers.

40. In Barwick v English Joint Stock Bank[42], Willes J, perhaps the greatest common lawyer of the 19th century[43], in giving the judgment of the Court of Exchequer said[44]:

    "The general rule is, that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved[45]." (emphasis added)

    [42](1867) LR 2 Ex 259.

    [43]In Mackay v Commercial Bank of New Brunswick (1874) LR 5 PC 394 at 411, Sir Montague Smith, giving the Advice of the Privy Council, said that Willes J was "one of the most learned Judges who ever sat in Westminster Hall."

    [44](1867) LR 2 Ex 259 at 265.

    [45]See Laugher v Pointer (1826) 5 B & C 547 at 554 [108 ER 204 at 207].

41. Willes J also said[46]:

    "It is true, he has not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in." (emphasis added)

    [46](1867) LR 2 Ex 259 at 266.

42. But in what sense was Willes J using the term "agent"?  Was it a tautologous reference to "servant" or did his Lordship intend to include agents who were not servants?  In Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd[47] ("CML"), Dixon J noted[48] that "difficulties ... arise from the many senses in which the word 'agent' is employed".  His Honour added that[49] "the expressions 'for,' 'on behalf of,' 'for the benefit of' and even 'authorize' are often used in relation to services which, although done for the advantage of a person who requests them, involve no representation".

    [47](1931) 46 CLR 41.

    [48](1931) 46 CLR 41 at 50. See also International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644 at 652.

    [49](1931) 46 CLR 41 at 50.

43. Barwick concerned liability for the conduct of a servant.  But it is impossible to think that a judge as great as Willes J would have stated the law as he did if he thought that the principal was only liable for the acts of an agent when the agent was a servant.  The distinction between agents for whom the principal was liable and those for whom they were not liable must have been in the forefront of Willes J's mind in Barwick.  He had cited the judgment of Littledale J in Laugher v Pointer[50] to support his general statement of principle.  To a large extent, that judgment had formed the basis of the decision in Quarman.  When Willes J referred to the liability of the principal for the acts of an agent, he must surely have had in mind the distinction between agents who were servants and those who were independent contractors.  Yet he went beyond confining the principal's liability to wrongs done by servants.

    [50](1826) 5 B & C 547 at 554 [108 ER 204 at 207].

44. When Barwick was decided, the generally accepted test for distinguishing between the servant and the independent contractor was the right to control the manner in which the agent did the work.  Thus, in Sadler v Henlock[51], the King's Bench held an owner of land liable for the nuisance caused by a labourer hired for a fixed sum even though the work had not been the subject of any direction or inspection by the owner.  Crompton J said[52] "[t]he test here is, whether the defendant retained the power of controuling the work.  No distinction can be drawn from the circumstance of the man being employed at so much a day or by the job.  I think that here the relation was that of master and servant, not of contractor and contractee".  Three years after the decision in Barwick, Willes J himself applied[53] the control test in holding that stevedores were not the servants of the master or owner of a vessel and that the master or owner was not liable for the negligence of the employees of the stevedores.  His Lordship said[54] that "[i]n one sense, indeed, they may be said to be agents of the owner; but they are not in any sense his servants".  That was because the stevedores were[55] "altogether independent of the master or owner".  That is, notwithstanding that the stevedores were "[i]n one sense" agents of the owner, the owner was not liable for the negligence which could be imputed to the stevedores.  This suggests that, in speaking of liability for the acts of agents as well as servants in Barwick, Willes J was referring to agents who, though not servants, were not so independent of the principal that they would be classified as independent contractors.

    [51](1855) 4 El & Bl 570 [119 ER 209].

    [52](1855) 4 El & Bl 570 at 578 [119 ER 209 at 212].

    [53]Murray v Currie (1870) LR 6 CP 24.

    [54]Murray v Currie (1870) LR 6 CP 24 at 27.

    [55](1870) LR 6 CP 24 at 26-27.

45. Moreover in Barwick, Willes J delivered a written judgment on behalf of the court.  The other members of the court were Blackburn, Keating, Mellor, Montague Smith and Lush JJ, each of whom was a recognised master of the common law.  If the common law of that time made the principal vicariously liable only for the conduct of an agent who was a servant in the strict sense, it would be surprising if none of these great lawyers had recognised the heresy that Willes J was perpetuating.

46. No doubt it is possible that Willes J was using the term "agent" as a synonym for "servant" and as covering the same factual situation.  But this seems unlikely.  As Professor Holdsworth has pointed out, "[i]n common speech, no doubt, both in the seventeenth century and in our own day, the terms principal and agent connote commerce, and the terms master and servant domestic service"[56].  Moreover, Willes J made these statements after saying[57] that "the question whether the principal is answerable for the act of an agent in the course of his business … was settled as early as Lord Holt's time[58]".

    [56]Holdsworth, A History of English Law, 2nd ed (1966 reprint), vol 8 at 227.

    [57](1867) LR 2 Ex 259 at 265.

    [58]Hern v Nichols 1 Salk 289 [91 ER 256].

47. In Hern v Nichols[59], to which Willes J referred, Lord Holt had held that a merchant was liable in deceit for the conduct of "his factor beyond sea"[60].  A factor was not a servant[61] although his relationship with the principal had much in common with that of a servant[62].  He was more akin to what we would now call a consignment agent working on commission.  Given his reference to Hern v Nichols[63], Willes J must at least have intended the liability of the principal to cover "the acts of his agents towards third parties in a relation which he (through the agent or otherwise) has invited them to occupy"[64].

    [59]1 Salk 289 [91 ER 256].

    [60]1 Salk 289 at 289 [91 ER 256 at 256].

    [61]Bush v Steinman (1799) 1 Bos & Pul 404 at 409 [126 ER 978 at 980].

    [62]Holdsworth, A History of English Law, 2nd ed (1966 reprint), vol 8 at 225-226.

    [63]1 Salk 289 [91 ER 256].

    [64]Baty, Vicarious Liability (1916) at 12.

48. Furthermore in Laugher v Pointer[65], Littledale J had said that the master was liable for the acts of his servants because "such servants represent the master himself, and their acts stand upon the same footing as his own".  That being so, it would not be surprising if Willes J was using the term "agent" to include a person who acted as the representative of the principal, whether or not the agent was also a servant.  That the liability of the principal extended to the conduct of such persons was later confirmed by this Court in CML[66].

    [65](1826) 5 B & C 547 at 553 [108 ER 204 at 207] (emphasis added).

    [66](1931) 46 CLR 41.

49. It is very likely therefore that in Barwick their Lordships intended to say that the liability of a principal included liability for the wrongful conduct of some agents who were not servants in the employee sense and that it at least included those commercial agents who acted as representatives of their principals in dealings with third parties.  And as Dr Baty, who was not in favour of extending the liability of principals, acknowledged, a number of cases supported that view of the law[67].  In Weir v Bell[68], in a passage cited with apparent approval by Lord Macnaghten in Lloyd v Grace, Smith & Co[69], Bramwell LJ stated:

    "[E]very person who authorizes another to act for him in the making of any contract, undertakes for the absence of fraud in that person in the execution of the authority given, as much as he undertakes for its absence in himself when he makes the contract."

    [67]Baty, Vicarious Liability, (1916) at 12.

    [68](1878) 3 Ex D 238 at 245.

    [69][1912] AC 716 at 737.

50. The reference to "agent" in Barwick may also have been intended to cover persons, particularly commercial agents, who were employed for a particular occasion but were subject to direction and control[70] or who were volunteers[71] but under the control of the principal – what we would now call an employee pro hac vice.

    [70]Federal Commissioner of Taxation v J Walter Thompson (Aust) Pty Ltd (1944) 69 CLR 227.

    [71]Johnson v Lindsay & Co [1891] AC 371 at 377-378.

51. In Mackay v Commercial Bank of New Brunswick[72], the Judicial Committee of the Privy Council reiterated that a principal was liable for the torts of his servant or agent acting within the scope of his or her authority and said that the "best definition"[73] of the principle was that of Willes J in Barwick.  Similarly, in Houldsworth v City of Glasgow Bank[74], Lord Selborne said that a principal was liable for the wrongs of his agent committed in the course of his service and that no exception could be taken to the principle as stated by Willes J in Barwick.Lord Selborne said[75] that it "is a principle, not of the law of torts, or of fraud or deceit, but of the law of agency".  That his Lordship intended the principle to apply to an agent who was not a servant is clear from his later statement[76]:

    "It is of course assumed in all such cases that the third party who seeks the remedy has been dealing in good faith with the agent in reliance upon the credentials with which he has been entrusted by the principal, and had no notice either of any limitation (material to the question) of the agent's authority, or of any fraud or other wrongdoing on the agent's part at the time when the cause of action arose."

    [72](1874) LR 5 PC 394.

    [73](1874) LR 5 PC 394 at 411.

    [74](1880) 5 App Cas 317 at 326.

    [75](1880) 5 App Cas 317 at 326.

    [76](1880) 5 App Cas 317 at 327.

52. In Lloyd v Grace, Smith & Co[77], the principle laid down in Barwick was once again confirmed and, on one view, extended by the House of Lords.  The issue in Lloyd was the significance of the phrase "for the master’s benefit" in the statement of principle which Willes J had formulated in Barwick.  The House of Lords unanimously held that a principal is liable for an agent's acts even if the acts are for the agent’s own benefit.  Lord Macnaghten gave the leading speech.  He referred to the "general rule" articulated by Willes J in Barwick that I have quoted and said that "[t]o that statement of the law no objection of any sort can be taken"[78].  Furthermore, Lord Macnaghten said that the comment of Willes J in Barwick that the question whether a principal is answerable for the acts of his or her agent had been settled in Lord Holt's time was "a general observation not confined to the case where the principal is a gainer by the fraud"[79].

    [77][1912] AC 716.

    [78][1912] AC 716 at 732.

    [79][1912] AC 716 at 732.

53. After noting that "the expressions 'acting within his authority,' 'acting in the course of his employment,' and the expression 'acting within the scope of his agency' (which Story uses) as applied to an agent, speaking broadly, mean one and the same thing"[80], Lord Macnaghten referred to a passage in Story on Agency[81]:

    "[N]ot only because it is the considered opinion of a most distinguished lawyer, but also because it is cited apparently with approval in the Court of Queen's Bench, consisting of Cockburn CJ, Blackburn, Mellor, and Lush JJ, by Blackburn J himself in a case which occurred in the interval between the date of Barwick’s Case[82] and the decision in Houldsworth v City of Glasgow Bank[83].The passage in the judgment of Blackburn J as reported in McGowan & Co v Dyer[84] is as follows:  'In Story on Agency, the learned author states, in s 452, the general rule that the principal is liable to third persons in a civil suit "for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances or misfeasances, and omissions of duty of his agent in the course of his employment, although the principal did not authorise, or justify, or participate in, or indeed know of such misconduct, or even if he forbade the acts, or disapproved of them."  He then proceeds, in s 456:  "But although the principal is thus liable for the torts and negligences of his agent, yet we are to understand the doctrine with its just limitations, that the tort or negligence occurs in the course of the agency.  For the principal is not liable for the torts or negligences of his agent in any matters beyond the scope of the agency, unless he has expressly authorised them to be done, or he has subsequently adopted them for his own use and benefit."'" (original emphasis)

    [80][1912] AC 716 at 736.

    [81][1912] AC 716 736-737.

    [82](1867) LR 2 Ex 259.

    [83](1880) 5 App Cas 317.

    [84](1873) LR 8 QB 141 at 145.

54. This passage brings out the point that, to make the principal liable, proof of the authority of the agent to commit the wrongful act is needed only when he or she has acted outside the scope or course of his or her agency.  Moreover, although Lloyd was concerned with liability for the acts of an employee, it is clear that Lord Macnaghten and the other Law Lords thought that a principal could be liable for the acts of agents who were not servants.  So did Sir Frederick Pollock, the Editor of the Authorised Reports.  The first statement in the headnote to Lloyd is[85]:

    "A principal is liable for the fraud of his agent acting within the scope of his authority, whether the fraud is committed for the benefit of the principal or for the benefit of the agent."

    [85][1912] AC 716 at 716.

55. I find it hard to believe that a common lawyer of the eminence of Sir Frederick Pollock, the person who claimed to have invented the term "vicarious liability"[86], would have allowed that headnote to be published if he had thought that a principal could only be liable for the acts of an agent when the agent was a servant.

    [86]Holmes-Pollock Letters – The Correspondence of Mr Justice Holmes and Sir Frederick Pollock 1874-1932, (1941), vol 1 at 233.

    CML

56. In CML[87], this Court held that a principal may be liable for tortious acts of an agent occurring within the scope of the agency if the agent is acting in a representative capacity even though the agent is not an employee.  In CML, the defendant, a life insurance company, had contracted with one Ridley to solicit insurance business for the defendant.  A majority[88], perhaps all[89], of the Justices of this Court thought that Ridley was not an employee of the defendant.  The contract contained a term expressly prohibiting Ridley from using language which might reflect upon the character or conduct of any person or institution or which might tend to bring it into disrepute or discredit[90].  Ridley defamed another insurance company which then sued the defendant for damages for the defamation.  By majority, this Court held that the defendant was liable, notwithstanding that neither the defamatory statement nor its publication had been authorised by the defendant.

    [87](1931) 46 CLR 41.

    [88](1931) 46 CLR 41 at 48 per Dixon J (with whom Rich J agreed), 69 per Evatt J, 70 per McTiernan J.

    [89]cf (1931) 46 CLR 41 at 46 per Gavan Duffy CJ and Starke J.

    [90](1931) 46 CLR 41 at 42, 48 and 65-66.

57. Gavan Duffy CJ and Starke J said[91]:

    "The nature of Ridley's employment … gave the defendant a good deal more power of controlling and directing his action than was conceded by the argument addressed to us.  Nothing in the agreement or the position of the parties denied the right of the [defendant] to control and direct Ridley when, where and whom he should canvass.  In our opinion the judgment of the Judicial Committee in Citizens’ Life Assurance Co v Brown[92] really concludes the present case."

    [91](1931) 46 CLR 41 at 46.

    [92][1904] AC 423.

58. In Brown, the defendant insurer was held liable for the defamatory statement of its employee.  It may be that Gavan Duffy CJ and Starke J saw no distinction in principle between the liability of a principal for the conduct of its employee and the liability of a principal for the conduct of other agents where the principal had the power to control and direct the action of the agent.  Their Honours continued[93]:

    "But if it does not, still we apprehend that one is liable for another's tortious act 'if he expressly directs him to do it or if he employs that other person as his agent and the act complained of is within the scope of the agent’s authority.'  It is not necessary that the particular act should have been authorized: it is enough that the agent should have been put in a position to do the class of acts complained of (Barwick v English Joint Stock Bank[94]; Lloyd v Grace, Smith & Co[95]).  And if an unlawful act done by an agent be within the scope of his authority, it is immaterial that the principal directed the agent not to do it." (emphasis added)

    [93](1931) 46 CLR 41 at 46-47.

    [94](1867) LR 2 Ex 259.

    [95][1912] AC 716 at 733.

59. Two points should be noted about this passage.  First, their Honours said that a principal is liable for the acts of his or her agent within the scope of authority.  They expressly rejected the requirement that the principal had directly authorised the wrongful act before vicarious liability can be imposed.  Second, their Honours spoke in general terms of the liability of the principal for the "tortious act" of its agent.  They did not limit the type of tortious act to which liability applies.  In particular, they did not confine the liability of the principal to statements made in the course of the agency.  Nor did they limit the classes of agency to which vicarious liability may attach.

60. After stating that Ridley was not a servant, Dixon J (with whose judgment Rich J agreed) said that this was not the end of the inquiry as to whether the defendant was liable[96].  In a much quoted passage, his Honour said[97]:

    "In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorized the doing of the act which amounts to a tort.  The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance.  The independent contractor carries out his work, not as a representative but as a principal." (emphasis added)

    [96](1931) 46 CLR 41 at 48.

    [97](1931) 46 CLR 41 at 48.

61. This statement should not be read as denying the principles of vicarious liability laid down in Barwick and Lloyd and which Gavan Duffy CJ and Starke J accepted as correctly stating the law.  The statement that, without direct authorisation, there is no vicarious liability for the acts of a "non-servant" was clearly made with respect to independent contractors, and not agents per se.  That is, Dixon J was saying no more than a principal is not liable for the wrongs of an independent contractor which the principal had not directly authorised[98].  That that was what his Honour had in mind is borne out by the following passage in his judgment[99]:

    "But a difficulty arises when the function entrusted is that of representing the person who requests its performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity."

    [98]See Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 366.

    [99](1931) 46 CLR 41 at 48-49.

62. When this difficulty arises, one is dealing with a "true agent"[100] and not an independent contractor.  Dixon J held that, in soliciting and obtaining proposals and receiving premiums, Ridley was acting with the authority of the defendant.  Moreover, "in performing these services for the Company, he does not act independently, but as a representative of the Company"[101].  But was this enough to make the defendant liable?  Dixon J commented[102]:

    "The rule which imposes liability upon a master for the wrongs of his servant committed in the course of his employment is commonly regarded as part of the law of agency:  indeed, in our case-law the terms principal and agent are employed more often than not although the matter in hand arises upon the relation of master and servant.  But there is, I believe, no case which distinctly decides that a principal is liable generally for wrongful acts which he did not directly authorize, committed in the course of carrying out his agency by an agent who is not the principal's servant or partner, except, perhaps, in some special relations, such as solicitor and client, and then within limitations." (emphasis added)

    [100](1931) 46 CLR 41 at 50.

    [101](1931) 46 CLR 41 at 49.

    [102](1931) 46 CLR 41 at 49.

63. Nevertheless, his Honour held that the defendant was liable[103]:

    "If the view be right which I have already expressed, that the 'agent' represented the Company in soliciting proposals so that he was acting in right of the Company with its authority, it follows that the Company in confiding to his judgment, within the limits of relevance and of reasonableness, the choice of inducements and arguments, authorized him on its behalf to address to prospective proponents such observations as appeared to him appropriate.  The undertaking contained in his contract not to disparage other institutions is not a limitation of his authority but a promise as to the manner of its exercise.  In these circumstances, I do not think it is any extension of principle to hold the Company liable for the slanders which he thought proper to include in his apparatus of persuasion."

    [103](1931) 46 CLR 41 at 50.

64. Thus, although the defendant did not directly authorise its agent's slander, it was held liable for its publication because[104]:

    "The wrong committed arose from the mistaken or erroneous manner in which the actual authority committed to him was exercised when acting as a true agent representing his principal in dealing with third persons." (emphasis added)

    [104](1931) 46 CLR 41 at 50.

65. The judgment of Dixon J in CML does not support the proposition that the principal is liable only for a wrongful act specifically instigated, authorised or ratified by the principal.  In his Honour's view, the principal is liable for all those acts of its agent which "arose from the mistaken or erroneous manner in which the actual authority committed to him was exercised" while acting as the principal's representative in dealings with third parties.

66. In CML, Evatt and McTiernan JJ dissented on the facts.  Nothing in their judgments throws any doubt on the law as laid down in Barwick and later cases.  Indeed, McTiernan J appears to have accepted[105] that the law was correctly stated by Gavan Duffy CJ and Starke J.

    [105](1931) 46 CLR 41 at 70-71.

67. In my opinion, the ratio decidendi of CML is that a principal is liable for the wrongful act of an agent causing damage to a third party when that act occurred while the agent was carrying out some activity as the principal's authorised representative in a dealing with a third party[106].  The judgment of Gavan Duffy CJ and Starke J might support a wider proposition.  But, on the facts of the case, the reasoning of Dixon J, with which Rich J agreed, is more consistent with the principles expounded in the earlier cases.

    [106]cf Baty, Vicarious Liability, (1916) at 12.

68. Although CML was concerned with a statement of an agent, there is no reason in principle or policy for distinguishing between the principal's liability for statements made within the scope of the agent's authority and other wrongful acts or omissions committed or omitted within the scope of that authority.  Indeed, early[107] as well as 19th century[108] cases made the principal liable for the agent's frauds.  Nor is there any reason in principle or policy why the liability should be confined to harm done in the course of dealing with a third party.  It would be illogical and anomalous to hold a principal liable for the intentional torts of an agent, such as fraud, while acting as a representative in the course of dealing with a third party but not liable for the careless conduct of an agent occurring in the course of carrying out a task for the principal as his or her representative.

    [107]Hern v Nichols 1 Salk 289 [91 ER 256].

    [108]Houldsworth v City of Glasgow Bank (1880) 5 App Cas 317.

69. The rationale for the liability of the employer for an employee's act is equally applicable to an agent who is acting as the representative of the principal in dealing with third parties or carrying out some task or duty for the principal.  In Bayley v Manchester, Sheffield, and Lincolnshire Railway Co[109], Willes J, who delivered the judgment of the court[110], stated the rationale for the vicarious liability of an employer for an employee's acts as follows[111]:

    "A person who puts another in his place to do a class of acts in his absence, necessarily leaves him to determine, according to the circumstances that arise, when an act of that class is to be done, and trusts him for the manner in which it is done; and consequently he is held answerable for the wrong of the person so intrusted either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been done; provided that what was done was done, not from any caprice of the servant, but in the course of the employment."

    [109](1872) LR 7 CP 415.

    [110]Willes, Keating and Byles JJ.

    [111](1872) LR 7 CP 415 at 420.

70. Holding a principal liable for the action of its agent occurring within the scope of authority while acting as the principal's representative is not inconsistent with the long standing rule that a person is not generally liable for the negligence of an independent contractor.  To suggest that it is ignores the elements of representation, the authority of the principal to state in detail the parameters of the agent's authority and to control the conduct of the agent in so far as there is scope for it. 

71. Moreover, a principal is now liable for the conduct of many persons who are classified as employees but who in earlier times would have been classified as independent contractors.  This historical development makes it difficult to justify confining the principal's liability to persons who were servants as that term was understood in 1840 when Quarman was decided.  Physical capacity to control the manner in which a person performs work for the employer is no longer necessary.  A person may be an employee for whose conduct the employer is responsible even though the employer does not have the capacity or skill to control the manner of the work.  In Zuijs v Wirth Brothers Pty Ltd[112], where this Court held that a trapeze artist was an employee, Dixon CJ, Williams, Webb and Taylor JJ said[113]:

    "The duties to be performed may depend so much on special skill or knowledge or they may be so clearly identified or the necessity of the employee acting on his own responsibility may be so evident, that little room for direction or command in detail may exist.  But that is not the point.  What matters is lawful authority to command so far as there is scope for it."

    [112](1955) 93 CLR 561.

    [113](1955) 93 CLR 561 at 571.

72. Agency cases of the kind with which CML is an example are far removed from the case of independent contractors.  Although the principal in such cases may not be in a position to control the manner in which the agent carries out his work, the principal retains control over many matters, permits the agent to represent him and invites third parties (directly or through the agent) to deal with the agent within the scope of the agency.  This is equivalent to the general authority which the employee has to conduct his or her employer's business while acting within the course of employment.  It is difficult to justify holding the principal liable for the conduct of a trapeze artist or a surgeon who is classified as an employee but not liable for the conduct of an agent who is a representative of the principal.

    The motor car cases

73. Once it is accepted that, for the purpose of the law of agency, there are persons for whom the principal is liable although they are not employees in the strict sense, the decisions in the "motor car" cases[114] – holding an owner liable for the conduct of some drivers who are not servants – should occasion no surprise.  They would be surprising only if liability for the tortious conduct of an agent was confined to the conduct of an agent who had the legal right to create or alter a legal relationship between the principal and a third party.  But servants are agents, and not all of them have the right to change the legal relationships of their principals.  Yet a principal may be vicariously liable for the wrongs of such a servant.

    [114]See eg Samson v Aitchison [1912] AC 844; Parker v Miller (1926) 42 TLR 408; Mortess v Fry [1928] SASR 60; Ormrod v Crosville Motor Services Ltd [1953] 1 WLR 1120; [1953] 2 All ER 753; Trust Co Ltd v De Silva [1956] 1 WLR 376; Soblusky v Egan (1960) 103 CLR 215; Gosson Industries Pty Ltd v Jordan [1964] NSWR 687; Jennings v Hannan (No 2) (1969) 89 WN (Pt 2) (NSW) 232.  See also Hewitt v Bonvin [1940] 1 KB 188; Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317; Manawatu County v Rowe [1956] NZLR 78; Rambarran v Gurrucharran [1970] 1 WLR 556; [1970] 1 All ER 749; Morgans v Launchbury [1973] AC 127.

74. The categories of liability for the acts of agents are no more closed than the categories of negligence.  If the motor car cases have extended the law of vicarious liability as it was perceived in 1840 when Quarman was decided, it is no more than another example of the capacity of the common law to adapt itself to new and analogous situations in the light of changing circumstances.  Properly understood, I would regard the decisions in these cases as simply applying the basic principles of agency law as it has developed in the law of torts although no doubt a number of them were incorrectly decided having regard to the principles to which I will refer.

75. The first of the "motor car" cases is Samson v Aitchison[115] where the Privy Council upheld a decision of the New Zealand Court of Appeal holding the owner of a motor vehicle, in which he was present, liable for the negligence of the driver who was not the owner's employee. Lord Atkinson said[116]:

    "[I]f the control of the car [by the defendant owner] was not abandoned, then it is a matter of indifference whether [the driver], while driving the car, be styled the agent or the servant of the [defendant] in performing that particular act, since it is the retention of the control which the [defendant] would have in either case that makes him responsible for the negligence which caused the injury." (emphasis added)

    [115][1912] AC 844.

    [116][1912] AC 844 at 850.

76. This was not a new development.  In Booth v Mister[117] and Wheatley v Patrick[118], common law courts had taken the view that the owner or hirer of a carriage, sitting next to the driver, was responsible for any negligent driving although the driver was not a servant.  Indeed in Du Cros v Lambourne[119], the English Court of Appeal had upheld a conviction for dangerous driving on the ground that the defendant was owner of the vehicle being driven and was sitting beside the driver.

    [117](1835) 7 Car & P 66 [173 ER 30].

    [118](1837) 2 M & W 650 [150 ER 917].

    [119][1907] 1 KB 40.

77. However, Hewitt v Bonvin[120], the seminal motor car case in the modern law, made it clear that merely giving a person permission to use a car did not make the owner responsible for the conduct of the driver.  In Hewitt, a son had used his father's car to drive two friends to their homes.  On the way back to the son's home, the car crashed, killing another passenger.  The deceased person's estate sued the driver's father, alleging that he was vicariously liable for his son's negligent driving.  The Court of Appeal unanimously held that the father was not liable.

    [120][1940] 1 KB 188.

78. MacKinnon LJ said[121]:

    "If A suffers damage by the wrongful act of B, and seeks to say that C is liable for that damage he must establish that in doing the act B acted as the agent or servant of C.  If he says that he was C's agent he must further show that C authorized the act.  If he can establish that B was the servant of C the question of authority need not arise." (emphasis added)

    [121][1940] 1 KB 188 at 191.

79. It would seem that "the act" that must be authorised by C is "the wrongful act of B".  That is, MacKinnon LJ apparently held the view that a principal must have directly authorised the tort committed by the agent for liability to be imposed.  His Lordship  asked only whether the son was the servant of his father and did not examine whether the son could be his father’s agent.  In his Lordship's view, in order to establish liability the plaintiff had to prove (1) that the son was employed to drive the car as his father's servant and (2) that, when the accident happened, the son was driving the car for his father, and not merely for his own benefit and for his own concerns[122].  MacKinnon LJ held[123] that the plaintiff failed to establish either (1) or (2).

    [122][1940] 1 KB 188 at 192-193.

    [123][1940] 1 KB 188 at 193.

80. In relation to (1), MacKinnon LJ quoted with approval the following definition of a servant from Salmond on Torts[124]:

    "A servant may be defined as any person employed by another to do work for him on the terms that he, the servant, is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done."

    [124][1940] 1 KB 188 at 191-192.

81. MacKinnon LJ noted that a person may be temporarily employed as a servant without remuneration[125] and gave the following example[126]:

    "If I say to a friend, or to my son, 'The chauffeur is ill and cannot come.  Will you drive me in my car to the station,' he is no doubt pro tempore my servant, and he is doing my work for me."

    [125][1940] 1 KB 188 at 192.

    [126][1940] 1 KB 188 at 192.

82. Lord Justice du Parcq, however, focused on the question of whether the son was his father's agent because "proof of agency is all that is required in order that the judgment which the [plaintiff] has secured may be retained"[127].  His Lordship said[128]:

    "The driver of a car may not be the owner's servant, and the owner will be nevertheless liable for his negligent driving if it be proved that at the material time he had authority, express or implied, to drive on the owner’s behalf.  Such liability depends not on ownership, but on the delegation of a task or duty."

    Lord Justice du Parcq held that the son was not an agent of his father because the plaintiff had failed to show more than a bailment of the car[129].

    [127][1940] 1 KB 188 at 194.

    [128][1940] 1 KB 188 at 194-195.

    [129][1940] 1 KB 188 at 196-197.

83. Notwithstanding the marked difference in the judgments of MacKinnon and du Parcq LJJ, Bennett J said[130] that he entirely agreed with both of them.

    [130][1940] 1 KB 188 at 197.

84. If the agent's act is within the scope of his or her authority, the principle formulated by du Parcq LJ does not require direct authorisation of the wrongful act by the principal for vicarious liability to ensue.  On the other hand, the principle formulated by MacKinnon LJ requires direct authorisation in all circumstances.  Thus, their Lordships appear to answer the question "for which acts of its agent is the principal liable?" differently.  However, while the formulation is different, the substance is much closer than at first appears.  MacKinnon LJ defined "servant" in a much broader way than that implicit in du Parcq LJ's judgment. Many individuals that MacKinnon LJ would have classified as pro tempore servants without remuneration would be classified by du Parcq LJ as agents to whom tasks or duties have been delegated.  The friend who acted as a chauffeur in the example given by MacKinnon LJ was (on his Lordship's test) a servant for whose acts within employment the master would be vicariously liable.   However, on du Parcq LJ's test, the friend would have been an agent, as the task or duty of driving had been delegated to him, and so the owner of the car would be vicariously liable as principal for all acts done within the scope of authority.

    Morgans v Launchbury

85. The approach of du Parcq LJ in Hewitt was substantially followed by the House of Lords in Morgans v Launchbury[131] where the plaintiffs sued Mrs Morgans in her capacity as administratrix of her husband's estate, and in her personal capacity, for damages resulting from the negligent driving of a car owned by Mrs Morgans but which she and her husband regarded as "our car"[132].  After drinking at several hotels with friends, Mr Morgans asked an acquaintance to drive for the rest of the evening[133].  Later that night, the car crashed as a result of the driver's negligence[134].  Mr Morgans and the driver were killed, and the other occupants of the car were injured[135].  Mrs Morgans, who had stayed at home, had given the acquaintance no authority to drive.

    [131][1973] AC 127.

    [132][1973] AC 127 at 133, 138, 141, 143 and 146.

    [133][1973] AC 127 at 133.

    [134][1973] AC 127 at 134.

    [135][1973] AC 127 at 133.

86. The appeal before the House of Lords concerned only the personal liability of Mrs Morgans[136].  Lord Wilberforce said that the issue was "whether as owner of the car, and in the circumstances in which it came to be used and driven, [Mrs Morgans] can be held vicariously liable for the negligence of the driver"[137].  Their Lordships unanimously answered this question, "no".

    [136][1973] AC 127 at 133.

    [137][1973] AC 127 at 133.

87. Lord Wilberforce said that their Lordships had been invited to "depart from accepted principle and introduce a new rule, or set of rules, applicable to the use of motor vehicles"[138].  The House of Lords rejected this invitation and the attempt by Lord Denning MR in the Court of Appeal to introduce a car-specific principle[139].  On "accepted principle"[140], the House of Lords held that Mrs Morgans was not vicariously liable for the negligence of the driver.

    [138][1973] AC 127 at 136.

    [139][1973] AC 127 at 136-137 per Lord Wilberforce, 138 per Viscount Dilhorne, 141-143 per Lord Pearson, 144-146 per Lord Cross of Chelsea, 151 per Lord Salmon.

    [140][1973] AC 127 at 136.

88. In Morgans, their Lordships delivered five speeches.  They indicate that the decision turned on a principle of vicarious liability based on the law of agency, rather than a principle about chattels or a sui generis principle of vicarious liability[141].  Lord Salmon expressly approved du Parcq LJ's formulation of principle in Hewitt[142], and Lord Pearson cited it with approval[143], while Lord Wilberforce said[144] that he agreed with Megaw LJ "both on the law and on the facts" and Megaw LJ had approved[145] du Parcq LJ's formulation of principle.

    [141]cf [1973] AC 127 at 135 per Lord Wilberforce, 144 per Lord Cross of Chelsea; Reynolds, Bowstead and Reynolds on Agency, 16th ed (1996) at 501-502, 508-510; Fleming, The Law of Torts, 9th ed (1998) at 429-432.

    [142][1973] AC 127 at 148 and 149.

    [143][1973] AC 127 at 140.

    [144][1973] AC 127 at 135.

    [145]See [1971] 2 QB 245 at 264-265.

89. All of their Lordships held that mere permission to use a chattel is insufficient to establish agency and thereby attract vicarious liability[146].  According to Lords Wilberforce, Pearson and Salmon, agency is established when the agent acts for the principal's purposes as the result of the delegation of a task or duty with the act of delegation requiring an instruction or request by the principal to the agent.

    [146][1973] AC 127 at 135 per Lord Wilberforce, 138 per Viscount Dilhorne, 140, 142 per Lord Pearson, 144 per Lord Cross of Chelsea, 148 per Lord Salmon.

90. According to all of their Lordships except Viscount Dilhorne, who approved the statement of principle by MacKinnon LJ in Hewitt, if the driver is the agent of the owner acting within the scope of the agency, the owner, as principal, is vicariously liable.  Lord Wilberforce said[147]:

    "[I]n order to fix vicarious liability upon the owner of a car in such a case as the present it must be shown that the driver was using it for the owner's purposes, under delegation of a task or duty."

    [147][1973] AC 127 at 135.

91. His Lordship said[148]:

    "I accept entirely that 'agency' in contexts such as these is merely a concept, the meaning and purpose of which is to say 'is vicariously liable,' and that either expression reflects a judgment of value – respondeat superior is the law saying that the owner ought to pay.  It is this imperative which the common law has endeavoured to work out through the cases.  The owner ought to pay, it says, because he has authorised the act, or requested it, or because the actor is carrying out a task or duty delegated, or because he is in control of the actor's conduct.  He ought not to pay (on accepted rules) if he has no control over the actor, has not authorised or requested the act, or if the actor is acting wholly for his own purposes."

    [148][1973] AC 127 at 135.

92. Lord Wilberforce held that, as the car was being used for Mr Morgans' purposes, and not Mrs Morgans' purposes[149], at the time of the accident, Mr Morgans' undertaking to Mrs Morgans to delegate his right to drive to another if he became intoxicated did not make the driver Mrs Morgans' "agent in any sense of the word"[150].

    [149][1973] AC 127 at 134.

    [150][1973] AC 127 at 135.

93. The House of Lords' decision in Heatons Transport (St Helens) Ltd v Transport and General Workers’ Union[151] supports the view that Morgans was decided upon the principles of agency and was not confined to motor vehicles.  Heatons Transport was not concerned with a motor vehicle but with whether a union was liable for the "unfair industrial practices" of its shop stewards, who were the agents but not the servants of the union.  Their Lordships held that the test for whether a master or principal is responsible for the act of a servant or agent is the same – "was the servant or agent acting on behalf of, and within the scope of the authority conferred by, the master or principal?"[152].  They cited[153] only Hewitt and Morgans in support of this proposition.  Moreover, this statement of the relevant test did not, in their Lordships' opinion, involve a new development in the law[154].  It is true that these comments must be read subject to the limitation placed upon them by their Lordships that[155]:

    "Liability for tortious acts is outside the scope of this appeal:  it may be a closely connected subject, but what is said here does not necessarily apply to it, because it is not under consideration."

    [151][1973] AC 15.

    [152][1973] AC 15 at 99 per Lords Wilberforce, Pearson, Diplock, Cross of Chelsea, and Salmon.

    [153][1973] AC 15 at 99.

    [154][1973] AC 15 at 99.

    [155][1973] AC 15 at 100.

94. Nevertheless, these two decisions of the House of Lords show that, so far as the common law of the United Kingdom is concerned, the vicarious liability of a principal is not confined to the conduct of a person who is a servant in the strict sense.

    Soblusky v Egan

95. In Soblusky v Egan[156], this Court held that Soblusky, the "owner"[157] of a car, was liable for the negligence of the driver which occurred while Soblusky, a passenger in the car, was asleep.  Soblusky, being "not young" and having "a stiff neck", "preferred not to drive long distances"[158].  Sometimes he asked a Mr Lewis to drive for him[159].  On the night in question, Lewis was driving Soblusky, and others (including the respondent, Egan), to a meeting of the Buffalo Lodge when the car crashed and Egan was injured[160].

    [156](1960) 103 CLR 215.

    [157]Soblusky was the de facto owner, but in law no more than the bailee, of a car which had originally been obtained under a hire purchase agreement by another man, Behrendorff.  Several payments were outstanding when Behrendorff "sold" the car to Soblusky.  Although Soblusky took over the payments, he was not in law the hire purchaser of the car because the "sale" was not recorded in writing as required by the relevant legislation.

    [158](1960) 103 CLR 215 at 225.

    [159](1960) 103 CLR 215 at 225.

    [160](1960) 103 CLR 215 at 225.

96. Dixon CJ, Kitto and Windeyer JJ held that Soblusky was liable.  However, their Honours did not apply the English line of authority existing in 1960 concerning vicarious liability for the driving of motor vehicles.  Instead, they applied principles[161] that were "settled" in "horse and buggy days"[162]:

    "[T]he 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 [Chandler v Broughton[163], Booth v Mister[164], and Wheatley v Patrick[165]] is simply that the management of the vehicle is done by the hands of another and is in fact and law subject to direction and control.  This therefore must be regarded as an obvious case." (emphasis added)

    [161](1960) 103 CLR 215 at 229.

    [162](1960) 103 CLR 215 at 231.

    [163](1832) 1 C & M 29 [149 ER 301].

    [164](1835) 7 Car & P 66 [173 ER 30].

    [165](1837) 2 M & W 650 [150 ER 917]. Their Honours said at 231 that "[i]t is from this line of authority that Samson v Aitchison proceeded".

97. Thus, an "agency" relationship existed between the owner and driver because the "principal" had the legal authority to direct how and when the car was driven, had directed Lewis to drive it on his behalf and had retained his power of control in the circumstances, notwithstanding that he was asleep[166].  Presumably, this authority or control derived exclusively from Soblusky's status as bailee of the car (there being no mention of any legal relationship between Soblusky and Lewis in the judgment)[167].

    [166]In Kondis v State Transport Authority (1984) 154 CLR 672 at 692, Brennan J, obiter, summarised the principle in Soblusky as follows:

    "A defendant is liable if he is the owner or bailee of the vehicle, if he appoints the driver to drive it on his behalf and if he is in the vehicle or is otherwise able to assert control over the driver: see Soblusky v Egan."

    [167]In Ricketts v Laws (1988) 14 NSWLR 311 at 319, Kirby P (as he then was), with whom Clarke JA agreed, stated that:

    "It has long been established at common law that, although not actually driving, a person is liable for the negligence of a driver of a motor vehicle over which that person had a right to exercise control: see Trust Co Ltd v De Silva [1956] 1 WLR 376 [at 380] and Soblusky (at 231)."

98. It does not appear that the Court in Soblusky was intending to use the term "agent" in the sense of the term "true agent" used by Dixon J in CML.  Moreover, it is hard to say that in driving the car Lewis was representing Soblusky in his relationship with others, "so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity"[168].  However, the case would seem to fall within the principles of liability later formulated by Lord Wilberforce in Morgans, although their Honours did not rely on the modern English cases.

    [168]CML (1931) 46 CLR 41 at 48-49; cf Nottingham v Aldridge [1971] 2 QB 739 at 752.

99. In Soblusky, Dixon CJ, Kitto and Windeyer JJ made obiter criticisms of the English authorities decided before 1960.  But their criticism is not necessarily applicable to the principle as enunciated in Morgans.  Indeed, 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.  But it is unnecessary to so classify it.  Like the great judges who decided Soblusky, I think that it was an "obvious case" and merely an application of principles which were settled in the 19th century.

100. That said, once it is accepted that the liability of a principal for the wrongs of another extends beyond the wrongs of a servant or the wrongful acts specifically instigated, authorised or ratified by the principal, there is no reason in principle or policy why the owner of a vehicle should not be held liable for wrongful conduct according to the principles enunciated in Morgans and Soblusky.  At all events, I think that is so if the driver has been delegated to perform a duty of the principal or a task which the principal has undertaken to perform and the agent is not acting in an independent capacity.  Like the agent who represents the principal in dealings with third parties, the driver to whom a task or duty of the principal has been delegated has been entrusted to do an act or class of acts on behalf of the principal and is subject to direction, if not control, by the principal.  In such a case, the driver is not like an independent contractor, employed simply to produce a result.  By reason of the ownership of the motor vehicle, the principal has the legal right to direct and control much of the manner in which the driver performs the task or duty delegated.

101. I do not think that there is any injustice in holding a principal vicariously liable for the tortious acts of his or her agent occurring within the scope of the authority when the agent has acted as the principal's representative or delegate.  First, imposing liability on the principal is likely to assist in avoiding tortious acts.  Because the principal will be liable for those acts, he or she has an incentive to exercise care in selecting, training and defining the scope of the authority of the agent.  This is particularly important at the present time where the contracting out of work – "outsourcing" – has become common place.  Agents in such situations often operate in very competitive markets and work on small margins.  Many of them are likely to be tempted to take risks and thereby avoid the inconvenience and expense of procedures that would avoid the occurrence of tortious conduct.   Second, the principal has a right of indemnity against the agent[169].  If the agent does not have the means to indemnify the principal, the agent will not have the means to indemnify the injured person.  If that is the case, it seems fairer that the person who engaged the wrongdoer as his or her representative or delegate should bear the loss than that it should fall on the innocent third party.  Third, traditionally an agent is armed with the authority to contract on the principal's behalf[170].  If the acts of the agent within the scope of authority can have legal consequences in contract, it does not seem an outrageous extension of a principal's liability that such acts can have consequences in tort.  Finally, liability does not become indeterminate if a principal is liable for the torts of an agent to whom the principal has delegated a task or duty and who is not acting as an independent contractor or who acts as the principal's representative in some activity.  Criteria such as "delegation", "task", "duty" and "representation" are far more determinate than many other criteria of liability, such as "reasonableness", "unconscionability" and "fairness of procedure".

     [169]See eg Gosson Industries Pty Ltd v Jordan [1964] NSWR 687 at 688.

     [170]International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644 at 652.

345. Four comments may be made about that passage.  The owner's rights of recourse against a driver will in many cases be illusory because the driver's means of satisfying a judgment obtained by the owner will be no greater than those which would be available to satisfy a judgment obtained against the driver by the injured person.  Secondly, many would dispute that there is any justice in a law that holds an entirely blameless owner liable merely because he is the owner.  Thirdly, the necessity for a plaintiff to establish the element of control, as the early cases to which I have referred show, was, in 1964, neither a fiction nor the product of only recent authority.  And, fourthly, what was apparently regarded as a rebuttable evidentiary presumption in New South Wales can provide no basis for a principle of substantive law that a driver of a motor vehicle is to be treated as the servant or agent of the owner in circumstances in which the driver clearly does not have that relationship with the owner[608].

     [608]It was pointed out in Harris v Van Spijk [1986] 1 NZLR 275 that several decisions in New Zealand before that case also involved similar reasoning: Ansin v R & D Evans Ltd [1982] 1 NZLR 184; Mihaka v Wellington Publishing Co(1972)Ltd;Alister Taylor Publishing Ltd [1975] 1 NZLR 10.

346. As is implicit in Gosson[609] and as Prosser and Keeton[610] and others candidly acknowledge to be the truth in many North American jurisdictions and elsewhere, the presence of an insurer, especially an insurer in a system of compulsory insurance, or the likelihood that usually the owner will better be able to pay than the driver, has influenced the result[611], not only on the issue of liability but also perhaps of damages, in consequence of which the law has become distorted, and justifications for its development in this area artificial and unconvincing.  This is so even though in modern times car ownership is very widespread and certainly no indicator of affluence.

     [609][1964] NSWR 687.

     [610]Prosser and Keeton on the Law of Torts, 5th ed (1984) at 524.

     [611]Fleming, The Law of Torts, 7th ed (1987) at 357:  refers as a factor to the "alarming carnage of motor traffic".

347. One school of thought would hold that to find the owner of a chattel liable for its negligent misuse by another at the owner's request involves neither anomaly, injustice nor social dislocation:  that public risk insurance or some other form of chattel insurance, or the right of the owner to recoup his or her loss from the actual wrongdoer does provide an acceptable answer to any complaint of an unfair imposition upon owners.  The other view is that to hold an owner liable in an entirely non-commercial context, and absent any negligence on his or her part, is to ignore the realities of ordinary society: that many people will not be aware of the availability of, or if they are, be able to afford insurance; and that, in consequence ordinary social and indeed familial intercourse is likely to be seriously inhibited.  The majority of the Full Court of South Australia were anxious about the implications of any rule that ownership of any chattel used by another at an owner's request might give rise to liability upon the owner for its misuse.  Their Honours appreciated that no rule had been stated in Australia in terms confining liability to any particular type of chattel.  They gave as an example a household chattel in common use, a family barbeque[612].  The owner of the barbeque asks a guest familiar with it to light it.  Unthinkingly, but carelessly, the guest brings the gas bottle too close to the flame.  An explosion occurs.  Other guests are injured.  In those circumstances, the Full Court thought, it would be unfair that the owner might be liable for all the consequences of the explosion.

     [612]Davis v Scott (1998) 71 SASR 361.

348. Examples can be multiplied.  A cricket bat manufacturer lends a cricket bat to a member of the Australian women's cricket team with a request that it be used in international matches.  That player becomes incapacitated and in turn lends the bat to another player whose competence is beyond question.  The first woman knows this because they have had many fruitful partnerships.  The former asks the latter to use the bat "to play it in" as frequent contact by it with the ball will harden and enlarge its "sweet spot".  The latter accedes to the request.  Grossly negligently she loses her grip on the handle of the bat.  It flies from her grasp and strikes a fielder close to the wicket.  Who, apart from the negligent player, if anyone is to be liable: the manufacturer, or the first mentioned player, or both of them?

349. These examples provide good reason for a narrow rule confining any principle at its widest to chattels of conveyance.  The one that the Full Court gave was influential in its holding that any principle of liability for ownership should not extend beyond motor cars.  These examples also expose the fallacy that only some chattels when misused or carelessly handled are capable of causing serious injury or damage, and the anomalies and difficulties to which any attempted classification of chattels as either dangerous or non-dangerous instrumentalities of the kind adopted in Florida in the United States may give rise[613].

     [613]See Grain Dealers National Mutual Fire Insurance Co v Harrison 190 F 2d 726 at 729-730 (1951) where the United States Court of Appeals, Fifth Circuit (Holmes, McCord and Russell JJ) said that there was no room for doubt that under the law of Florida, aeroplanes should be similarly classified with the automobile as a "dangerous agency when in operation", in consequence of which an owner will be liable for the acts and omissions of the pilot. In Orefice v Albert 237 So 2d 142 (1970) the Supreme Court of Florida (Adkins, Thornal and Boyd JJ; Spector DCJ concurring; Drew ACJ dissenting) held an aeroplane to be a "dangerous instrumentality" and subject to the same rule.

350. One case in another common law jurisdiction should be noted.  Moynihan v Moynihan[614] is a case with some features in common with this one.  The plaintiff was an infant.  The defendant was a close relative of the plaintiff, her grandmother in fact.  The occasion was one of the provision of hospitality.  The chattel was a teapot full of hot tea, covered by a brightly coloured tea cosy.  The plaintiff overturned the teapot and injured herself after the defendant's daughter who had put the teapot on the table, left the room.  The Supreme Court of Ireland (O'Higgins CJ, Walsh J; Henchy J dissenting) held that the defendant as the householder, and as the person in control of the hospitality being provided by her in her own home, could be vicariously liable for damage resulting from the negligence of her daughter in performing a gratuitous service in the course of the provision of the hospitality.  Henchy J, in dissent, made these observations[615]:

     "In the present case it would seem that, if the defendant had received and accepted an offer from the plaintiff's mother to make and serve the tea on the defendant's behalf, and if the plaintiff's mother in doing so had acted as Marie did, the defendant would be liable for the negligence of the plaintiff's mother.  One's first reaction to the sweep of this submission, which implies a vicarious liability for negligence in the countless acts of that kind that are done in the course of the daily round, is that one would expect to find many cases illustrating the operation of such a rule.  Yet, counsel for the plaintiff is unable to put forward any case in support of his proposition."

     The case provides a clear, actual example of the way in which ordinary social and familial intercourse might be seriously damaged, were a far reaching rule in relation to chattels to be adopted.

     [614][1975] IR 192.

     [615][1975] IR 192 at 200.

351. A special rule confined in its operation, or constituting an exception to a general rule is no novel thing in the common law which has frequently been ingenious to devise exceptions and special rules.

352. The law in relation to both vicarious liability and damage arising out of the use of chattels is a far from seamless cloth as the cases to which I have referred show.  Take for example the case of a chattel with a capacity to cause injury.  As laid down in Donoghue v Stevenson[616], its manufacturer, notwithstanding that he or she intended it to be sold and used, was only to be liable to a purchaser or user of it, if there has not been an opportunity for it to be subjected to an intermediate examination.  But the law has moved somewhat beyond that point, and not necessarily in an orderly and predictable way, since 1932[617].  And, as Fleming points out with respect to the law governing the liability of principals for the activities of independent contractors in carrying out "non‑delegable duties," the Courts have not been slow to hold duties of diverse kinds to be non-delegable and to do so without stating any unifying and clear principle[618]:

     "The list of cases where this vicarious liability, under the fictitious guise of non-delegable duties, has been found is long and diverse.  Understandably, it includes all instances of strict liability, such as those relating to extra-hazardous substances and fire, providing lateral support for adjacent land[619], and the near strict duty to maintain premises abutting the highway in sound repair[620].  But it has been extended also to situations where the duty (as ordinarily formulated) is merely to use reasonable care, thereby converting it into the higher duty to assure that care is taken.  Examples are the obligation of employers to provide a safe system of work[621] and to comply with statutory safety standards[622]; of hospitals to care for their patients, and of occupiers to safeguard contractual entrants and, with some qualifications, invitees[623]; even of developers for the safety of home purchasers[624]. Apparently included also are cases where damage results from undertakings which, but for statutory authority, would be unlawful, as where a contractor carelessly left some timber lying in a field after making trial bores on behalf of a government authority[625].  The most homogeneous group seems to consist of cases where the work involves a high risk in the absence of special precautions, so that - perhaps for the sake of additional risk prevention - the employer should be encouraged to ensure its proper performance by whomever he employs to get it done.  Another common thread has been discerned in the existence of a 'special protective relationship' as in the case of employers, schools and hospitals[626]; but that does not explain other instances nor why such a relation should demand this rather than some other form of increased responsibility, such as a higher degree of care or outright strict liability."  (some footnotes omitted)

     [616][1932] AC 562.

     [617]Fleming, The Law of Torts, 7th ed (1987) at 127-129.

     [618]Fleming, The Law of Torts, 7th ed (1987) at 362.

     [619]Dalton v Angus (1881) 6 App Cas 740.

     [620]Tarry v Ashton (1876) 1 QBD 314.

     [621]See, for example, Kondis v State Transport (1984) 154 CLR 672; cf Stevens v Brodribb (1986) 160 CLR 16.

     [622]Groves v Wimborne [1898] 2 QB 402 at 410.

     [623]But not licensees: Morgan v Girls' Friendly Society [1936] 1 All ER 404.

     [624]Mt Albert v Johnson [1979] 2 NZLR 234 (CA: liable for builder).

     [625]Darling v Attorney-General [1950] 2 All ER 793. See also Hardaker v Idle District Council [1896] 1 QB 335 at 351; Holliday v National Telephone Company [1899] 2 QB 392 at 398 (decisions which could be based on the extra-hazardous nature of the work).

     [626]Kondis v State Transport Authority (1984) 154 CLR 672 at 687.

353. Commentators and judges have strived unsuccessfully for uniformity of language and meaning in these difficult areas of vicarious liability and of liability of owners of chattels, particularly in non-commercial contexts[627].  Both the notion and language of vicarious liability will usually be quite foreign to activities undertaken in a domestic or social setting.

     [627]See McDonald and Swanton, "The Common Lawyer" (1995) 69 Australian Law Journal 323;  Paterson, "Rylands v Fletcher Into Negligence: Burnie Port Authority v General Jones Pty Ltd", (1994) 20 Monash University Law Review 317;  Swanton, "'Another Conquest in the Imperial Expansion of the Law of Negligence': Burnie Port Authority v General Jones Pty Ltd", (1994) 2 Torts Law Journal 101;  Swanton, "Non-delegable Duties: Liability for the Negligence of Independent Contractors" - Pt 1 (1991) 4 Journal of Contract Law 183;  Swanton, "Non‑delegable Duties:  Liability for the Negligence of Independent Contractors" - Pt 2 (1992) 5 Journal of Contract Law 26; Whippy, "A Hospital's Personal and Non-delegable Duty to Care for Its Patients - Novel Doctrine or Vicarious Liability Disguised?", (1989) 63 Australian Law Journal 182.

354. The appellants in this case sought to rely on some statements by Dixon J in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co‑operative Assurance Co of Australia Ltd[628], a case of slander by an independent contractor whose business was the solicitation of proposals on behalf of the insurance company he represented.  It was held there that the company was liable for the contractor's slanderous remarks in disparagement of the company competitors.  But the outcome depended in part at least upon the commercial relationship between the contractor and the company, as his Honour's references to the acceptance of premiums and the soliciting of proposals show[629]: 

     "In this very case the 'agent' has authority to obtain proposals for and on behalf of the appellant; and he has, I have no doubt, authority to accept premiums." 

     [628](1931) 46 CLR 41; see also Doyle v Pick & Rickwood [1965] WAR 95; Kirth v Tyrrell [1971] Qd R 453.

     [629](1931) 46 CLR 41 at 49.

355. There have always been special rules, common law and statutory, relating to the navigation of boats and ships and responsibility therefor[630]:  and these and other situations will fall to be considered in that and other contexts as and when they arise.  The issues presented here are the breadth and true meaning of the principle for which Soblusky v Egan stands, and whether it should be extended to aeroplanes.

     [630]A pilot who is carrying out pilotage can be treated as a "servant" of the shipowner:  Clark v J & P Hutchison Ltd (1925) 21 Ll L Rep 169. See also Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626.

356. In my opinion this Court was aware of the desirability of stating a general principle and a narrow one in Soblusky v Egan[631].  True it is that Dixon CJ, Kitto and Windeyer JJ said they thought the case an obvious one but that was certainly not the universal opinion in the profession when it was argued and the decision given[632].  Their Honours' statement of principle should be taken to be one of general application to motor vehicles only, but it does require some clarification.  They said[633]:

     "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 the management of the vehicle is done by the hands of another and is in fact and law subject to direction and control."

     The key words in the judgment are " ... 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.[634]"

     [631](1960) 103 CLR 215.

     [632](1960) 103 CLR 215 at 231.

     [633](1960) 103 CLR 215 at 231.

     [634](1960) 103 CLR 215 at 231.

357. The conditions necessary to establish liability of an owner of a motor car for the acts of its driver are these.  First, there must be an appointment, engagement or request.  That appointment, engagement or request needs to be a real appointment, engagement or request.  The request must be made in something other than a merely domestic or social context.  It must be made in circumstances in which the owner will derive a real benefit.  The benefit need not be a financial benefit but it must be more than, as here, the deriving of a sense of satisfaction from the bestowal of a social favour or kindness.  Secondly, there must be the reality of an actual power of control.  The existence of a power of control can be of no relevance unless its exercise is, or is likely to be effective.  That is why so many of the early cases to which I have referred stressed the presence of the owner and his relationship with the person, usually a coachman or driver, who was actually managing the chattel, as relevant factors, even though any ability to exercise any effective control was probably a fiction, as it often would have been with horses, and, as indeed it will usually be, with a car or any other fast moving object, that may cause or suffer damage in a split second.  The use of the word "always" by their Honours in Soblusky is therefore significant and important as implying the need for a real and continuing power of, and capacity for effective intervention.  Furthermore, an owner not actually personally using or managing the car can hardly be expected to intervene to exercise effective control unless there become apparent circumstances which call for intervention of a kind which is likely to be effective.  These are, in my opinion, the minimum conditions to be satisfied and should constitute the rules to apply to the liability of owners (or bailees) of motor cars being used or operated by others in a non-commercial context on a proper reading of Soblusky v Egan. 

358. If these rules were to be applied to this case the appeal would have to be dismissed.  The context was entirely non-commercial.  The respondent derived no relevant benefit from providing the aeroplane and making the request of Mr Bradford.  Nothing suggested itself to the respondent as being untoward or calling for his intervention in the earlier flying of the aeroplane by Mr Bradford.  There was here neither an occasion calling for, nor the opportunity for, the respondent to take any steps that could have been effective to prevent Mr Bradford from operating the aeroplane the way in which he did.

359. The appeal should also be dismissed on the ground that the principles stated in Soblusky v Egan should not be extended beyond motor cars.  I would dismiss the appeal with costs.

     
     

145-146 per Lord Cross of Chelsea, 151 per Lord Salmon.