Court of Appeal (WA)|2004-09-10|Before: McLure J, Heenan J, Miere J

Bell v The State of Western Australia [2004] WASCA 205 (10 September 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BELL -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 205

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Tort - Statutory immunity of official - Section 124 of Western Australian Marine Act 1982 - Whether immunity substantive or procedural - Whether State vicariously liable for conduct of official - Application of s 5 of Crown Suits Act 1947 - Whether official's conduct within the scope of the immunity

Australian National Airlines Act 1945 (Cth), s 46

Law Reform (Married Women and Tortfeasors) Act 1935 (UK)

Australian National Airlines Commission v Newman [1987] HCA 9; (1987) 162 CLR 466

Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; (1961) 109 CLR 105

Broom v Morgan [1953] 1 QB 597

Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714

Darling Island Stevedoring and Lighterage Company Ltd v Long [1957] HCA 26; (1957) 97 CLR 36

De Bruyn v South Australia (1990) 54 SASR 231

Edgecock v Minister for Child Welfare [1971] 1 NSWLR 751

Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114

Groves v The Commonwealth [1982] HCA 21; (1982) 150 CLR 113

Hill v British Columbia (1997) 148 DLR (4th) 337

Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21

McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1

Mealing v P Chand t/as Fastfix [2003] NSWCA 205; (2003) 57 NSWLR 305

Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295

Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 199 CLR 575

Scott v Davis (2000) 204 CLR 333

State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511

Stavely Iron and Chemical Co Ltd v Jones [1956] AC 627

Tooth & Company Ltd v Tillyer [1956] HCA 49; (1956) 95 CLR 605

Attorney-General v Marquet [2003] HCA 67; (2003) 78 ALJR 105

British American Tobacco Ltd v Western Australia [2003] HCA 47; (2003) 77 ALJR 1566

Butler v Attorney General (Vic) [1961] HCA 32; (1961) 106 CLR 268

Commonwealth of Australia v Connell (1986) 5 NSWLR 218

Essendon Corporation v Criterion Theatres Ltd [1947] HCA 15; (1947) 74 CLR 1

Everett v Western Australia [2001] WADC 18

Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1

Kartinyeri v The Commonwealth of Australia [1998] HCA 22; (1998) 195 CLR 337

Masterwood Pty Ltd v Far North Queensland Electricity Board (No 2) [2000] 1 Qd R 253

Masterwood Pty Ltd v Far North Queensland Electricity Board [1999] 1 Qd R 345

Mitchell v Scales [1907] HCA 66; (1907) 5 CLR 405

Pirrie v McFarlane [1925] HCA 30; (1925) 36 CLR 170

Ringelstein v Redford Cattle Co Pty Ltd [1994] QCA 14; [1995] 1 Qd R 433

South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603

State Energy Commission of Western Australia v Alcoa Australia Ltd (1996) 17 WAR 131

Town Investments Ltd v Department of Environment [1977] UKHL 2; [1978] AC 359

1 MCLURE J: The issue in this appeal is whether the respondent, the State of Western Australia ("State"), is not liable to the appellant for negligently caused damage to his houseboat as a result of s 124 of the Western Australian Marine Act 1982 (WA) ("the Act").

2 The learned trial Judge held that but for s 124 of the Act Mr James Tong, a naval architect surveyor in the employ of the Department of Transport, would have been liable in negligence in the discharge of his duties under the Act in failing to notify the appellant that a door in the transom of the houseboat was not to be opened while the houseboat was afloat. He held further that as Mr Tong was not liable in negligence therefore the State was not liable to the appellant.

3 Section 124 of the Act provides:

"124 Immunity of Minister and officials

No liability shall attach to the Minister, the chief executive officer or any other official of the Department, or to any person acting with the authority or on the direction of the Minister or the chief executive officer in good faith and in the exercise or purported exercise of a power or in the discharge or purported discharge of a duty under this Act."

4 The issues that arise in the appeal are based on the Commissioner's finding that but for Mr Tong's immunity under s 124 of the Act the State would be vicariously liable for Mr Tong's negligence. Notwithstanding some indication in the reasons to the contrary, it is accepted by both parties that the trial Judge did not find that but for s 124 of the Act the respondent would be directly (that is, personally) liable to the appellant. The appeal was conducted on that basis. The specific issues in the appeal are whether:

(1) s 124 of the Act renders a nominated person immune from liability or simply bars any remedy being given against him or her;

(2) if an official is immune from liability under s 124 of the Act, the State is vicariously liable for the official's conduct;

(3) s 124 of the Act is inconsistent with and impliedly repealed s 5(1) of the Crown Suits Act 1947 (WA);

(4) Mr Tong's conduct was in the exercise or purported exercise of a power or in the discharge or purported discharge of a duty under the Act.

5 Division 5 of Pt II of the Act relates to surveys and certificates of survey of commercial vessels. A commercial vessel is a vessel which is not used solely for pleasure or recreation. The houseboat was intended to be a commercial vessel. The Act empowers the Governor to make regulations prescribing the matters that are necessary or convenient to be prescribed in respect of the survey of vessels and certificates in relation to such surveys as well as all matters that are necessary or convenient to be prescribed for the regulation of construction requirements for vessels built to the survey of the Department (ss 25 and 29 of the Act). The Department is defined as the department of the Public Service principally assisting the Minister in the administration of the Act. At the material time that was the Department of Transport ("Department").

6 The W A Marine (Surveys and Certificates of Survey) Regulations 1983 (WA) ("the Regulations") were made under the Act. Regulation 5 requires that every new vessel constructed under the jurisdiction of the State is required to undergo an initial survey for the purpose of satisfying the Chief Executive Officer that the vessel complies with the laws of the State (reg 5(1)).

7 The Chief Executive Officer means the Chief Executive Officer of the Department. Although not addressed before the trial Judge or in the appeal, it appears that the relevant laws of the State include the WA Marine (Construction, Stability and Engineering) Regulations 1983 (WA) made under s 29 of the Act. I infer that the primary purpose of the survey requirements of the Act and the regulations made thereunder is the safety of persons using the vessels.

8 An application for an initial survey must be made to the Chief Executive Officer in a specified form and be accompanied by specified information (reg 5(2) and (3) of the Regulations).

9 Subject to an exception that is not relevant here, an initial survey must be carried out in full by the Department's surveyors who shall forward to the Chief Executive Officer in writing, and in a form approved by the Chief Executive Officer, a report of the condition of the hull and the boilers and machinery and equipment of the vessel (reg 5(5) of the Regulations). Upon receiving a satisfactory report from a surveyor performing the initial survey of a vessel, the Chief Executive Officer is required to prepare a certificate of survey containing specified information, the original of which must be issued to the owner or his agent (reg 11 of the Regulations).

10 In March 1988 the appellant agreed to purchase a houseboat from the Australian Caravan Co ("ACC"). The hull of the houseboat was manufactured by Hydrocats and ACC added the superstructure to the hull. The appellant intended to make the houseboat available for hire at Broome.

11 In April 1998, Hydrocats lodged with the Department a form entitled Application for the Initial Survey of a Commercial Vessel ("application") in respect of the houseboat. The form (and the Regulations) required that plans for the vessel be submitted and approved before construction commence.

12 By letter dated 11 May 1998, Mr Tong informed Mr S Palmer of Hydrocats of the survey requirements for the houseboat. They included that the owner of the boat was required to make an application for a hire and drive license before a certificate of survey could be issued. Mr Tong also advised that the plans for the houseboat had been approved subject to specified matters.

13 In about June 1998 Mr Tong inspected the hull while it was under construction. He subsequently inspected the fitting out of the cabin of the houseboat at ACC's premises prior to its completion. Mr Tong noticed a transom door cut-out which was not shown on the conditionally approved plans. A representative of ACC, Mr M Pollock, informed Mr Tong that the purpose of the transom door was to permit entry and exit to and from the houseboat when being used as a caravan on its trailer. Mr Tong instructed Mr Pollock the door required a seal, clamps, and a sign warning that the door must not be opened while the houseboat was afloat.

14 Subsequently, Mr Tong carried out a stability test on the houseboat and found it to be acceptable with the transom door closed. Later he attended at ACC's premises and tested the seal of the transom door. On 7 July 1998 Mr Tong told the appellant that the houseboat would pass survey if the items listed in a document, which he gave to the appellant, were installed. The list did not refer to a sign warning that the transom door must not be opened while the houseboat was afloat. Further, although Mr Tong had told Mr Pollock that the houseboat could not be operated safely with the door open, he did not tell the appellant who he knew was going to operate the houseboat.

15 The appellant took delivery of the houseboat during July 1998 and towed it to Port Hedland, arriving on 22 July 1998. He had not at this stage received a certificate of survey for the houseboat. The appellant used the houseboat as a caravan on land and thereafter on three or four occasions in the water. On 30 August 1998 the appellant put the houseboat to sea in calm waters in Port Hedland. He lowered the transom door to allow passengers on board to enter the water from the houseboat and to return. While one of the adult passengers was standing on the ladder to the transom door to reboard the houseboat and another was standing by the transom, the houseboat heeled and began to take water through the transom door opening. The vessel sank within five minutes.

16 The trial Judge found that the houseboat could not be operated safely in water with the transom door open. He concluded that Mr Tong owed a duty of care to the appellant and breached that duty by failing to inform the appellant that the houseboat could not be operated safely in the water with the transom door open and that he required a sign to that effect to be placed on the transom door. The State does not challenge the correctness of the trial Judge's findings relating to Mr Tong's negligence.

17 It appears to have been accepted that Mr Tong was an official of the Department and a servant of the State. The trial Judge concluded that the duty and breach arose in the discharge by Mr Tong of his duty to conduct the survey of the houseboat under the Act and thus he was immune from liability for negligence. He rejected a submission that the breach was one of omission and as such not within the scope of s 124 of the Act.

18 It is accepted that the immunity conferred by provisions such as s 124 of the Act should not be carried further than a jealous or strict interpretation will allow: Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 199 CLR 575 at 578 [4] per Gleeson CJ and Gummow J; Australian National Airlines Commission v Newman [1987] HCA 9; (1987) 162 CLR 466 at 471 per Mason CJ, Deane J, Toohey and Gaudron JJ; Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; (1961) 109 CLR 105 at 116 per Kitto J.

19 The appellant contends that on a proper construction of s 124 of the Act the beneficiaries of the immunity are not immune from liability but rather immune from suit or action for a remedy. That is, the immunity is a mere rule of procedure and not a rule of substantive law to adopt the language of Denning LJ in Broom v Morgan [1953] 1 QB 597 at 609, a case relied on by the appellant.

20 The Court of Appeal in Broom v Morgan considered the character of the immunity between a husband and wife in respect of tort and how it impacted on an employer's liability for the negligent conduct of the husband. It held that the husband's employer was liable in negligence to his wife notwithstanding the husband's immunity. Lord Denning relied on two grounds for that conclusion, the second being based on the construction of s 12 of the Married Women's Property Act 1882 (UK) preserved by s 1 of the Law Reform (Married Women and Tortfeasors) Act 1935 (UK). Lord Denning said (at 609 - 610):

"That section disables the wife from suing her husband for a tort in much the same way as the Statute of Frauds prevents a party from suing on a contract which is not in writing; but it does not alter the fact that the husband has been guilty of a tort. His immunity is a mere rule of procedure and not a rule of substantive law. It is an immunity from suit and not an immunity from duty or liability. He is liable to his wife, though his liability is not enforceable by action; and, as he is liable, so also is his employer, but with this difference, that the employer's liability is enforceable by action."

21 The High Court in Tooth & Company Ltd v Tillyer [1956] HCA 49; (1956) 95 CLR 605 expressed reservations as to the correctness of the characterisation in Broom v Morgan of the husband/wife immunity as one from suit not liability (and the focus in that case on the statute rather than the common law immunity said to have been amended by the statute). In Tooth an employer had paid worker's compensation to a woman whose injuries were sustained as a result of her husband's negligence. The employer sought an indemnity from the husband. The indemnity was payable under the then applicable workers' compensation legislation if the injury was caused "under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof". The court held that, by virtue of the immunity, there was no relevant legal liability in the husband.

22 Broom v Morgan was again considered by the High Court in Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295. In Parker the widow of a man who died as a result of a collision at sea between the navy ships Melbourne and Voyager sued the Commonwealth for damages in respect of his death. The action was heard by Windeyer J. He considered the nature of the immunity between serving members of the armed forces and its impact on the liability of their employer, the Commonwealth. Windeyer J identified the question as being whether the case was one in which "an immunity of the servant can co-exist with a liability of his master, the Commonwealth, thus bringing the topic into the same category as the much discussed case of Broom v Morgan ... ?". He answered the question in the negative, effectively confining that case to the immunity of husband and wife.

23 In any event, what is said in the authorities concerning other immunities is of limited assistance. The answer to the question in this case is to be derived from the language of s 124 of the Act. It provides that "No liability shall attach ... ". The section is clear and admits of no ambiguity. Section 124 creates an immunity from liability not an immunity from action.

24 This construction is consistent with that given to a similarly worded provision by the South Australian Full Court in De Bruyn v South Australia (1990) 54 SASR 231 at 236 per King CJ.

Whether Vicarious Liability for Officials Act

25 The broader question is whether vicarious liability of the State can co-exist with the immunity from liability of its servant. An employer's liability in tort arising out of the act or omission of an employee can be direct or vicarious. If liability is direct, it is personal liability. If liability is vicarious, it is derivative. No issue of non delegable duty arises in this case. There are differences of opinion as to the jurisprudential basis for the imposition of vicarious liability. One theory, called the "master tort theory", is that the employer is liable because of his own negligence in selecting and employing careless employees or by failing to prevent employees from acting negligently or because of an implied command by the employer. However, the master tort theory is now generally rejected as an explanation for vicarious liability: State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 at 611 per Kirby J; Fleming, "The Law of Torts" 9th ed at 412; Trindade & Cane, "The Law of Torts in Australia" 3rd ed at 743 - 744. Selway, "The Source and Nature of the Liability of Tort in Australian Governments", Tort Law Review March 2002 at 16.

26 The generally accepted view is that an employer's vicarious liability is not based on breach of any personal duty but on his employee's tort being imputed to the employer (Fleming, supra at 412). Although members of the High Court in Lepore refer to the unsatisfactory exposition of the rationale or jurisprudential basis for the doctrine (Gaudron J at [106] and Gummow and Hayne JJ at [196], I do not see any support in the judgments for the master tort theory.

27 Opposing views as to the basis for vicarious liability are referred to in the judgments of Fullagar J and Kitto J in Darling Island Stevedoring and Lighterage Company Ltd v Long [1957] HCA 26; (1957) 97 CLR 36. The question in that case was whether an employer was in breach of a statutory duty in circumstances where one of its employees was in breach. Fullagar J said of the nature of an employer's vicarious liability (at 57) that:

"The liability is a true vicarious liability: that is to say, the master is liable not for a breach of a duty resting on him and broken by him but for a breach of duty resting on another and broken by another."

28 Fullagar J went on to say (at 57 - 58) that where the liability of an employer for the acts of an employee is personal, the employer would remain responsible even though the employee may, for some reason be immune. However, if the liability is vicarious then "if the servant is 'immune', so is the employer".

29 Kitto J took a different view. He said (at 60 - 61):

"It seems to me that 'vicarious liability' should be recognised as an example of transferred epithet, and as referring to a liability for vicarious acts: see per Denning and Hodson L.JJ. in Broom v Morgan. The master's liability, when it exists, is not a liability substituted for that of the servant. It exists, I think, not because the servant is liable, but because of what the servant has done. It is a separate and independent liability, resulting from attributing to the master the conduct of the servant, with all its objective qualities, but not with the quality of wrongfulness which, in an action against the servant, it may be held to have because of considerations personal to the servant. The master 'is to answer for the act as if it were his own' ... He is not to answer for the servant's liability, but for his act;"

30 As appears from this passage, Kitto J relies on the analysis of the Court of Appeal in Broom v Morgan. Lord Denning's characterisation of the husband and wife immunity as immunity from suit was an alternative basis for attaching liability to the husband's employer. Lord Denning's primary ground for upholding the employer's liability was that, on proper analysis, the employer's liability was personal. He said (at 609):

"My conclusion on this part of the case is, therefore, that the master's liability for the negligence of his servant is not a vicarious liability but a liability of the master himself owing to his failure to have seen that his work was properly and carefully done. If the servant is immune from an action at the suit of the injured party owing to some positive rule of law, nevertheless the master is not thereby absolved. The master's liability is his own liability and remains on him notwithstanding the immunity of the servant."

31 Having regard to Kitto J's reliance on Broom v Morgan and Lord Denning's explanation of the theory of vicarious liability, it is apparent that the position taken by Kitto J reflects the generally rejected master tort theory of vicarious liability.

32 However, notwithstanding what was said earlier in Darling Island Stevedoring Windeyer J in Parker v The Commonwealth (supra), concluded that immunity from liability of the servant cannot co-exist with vicarious liability of the employer whatever the jurisprudential basis of vicarious liability. He said (at 300 - 301):

"Whether the so-called 'vicarious' liability of a master for the tortious acts of his servant arises because the master is answerable for his servant's torts, or because the acts of his servant are imputed to him so as to make himself liable in tort, has been much discussed and has provoked differing views, judicial and academic ... But, however the principle of liability should be expressed, I think that the Commonwealth is only liable for the acts or omissions of a servant if the servant would himself be liable: "

33 This statement of principle has been applied by intermediate Courts of Appeal in South Australia (De Bruyn v South Australia at 235 per King CJ) and New South Wales; (Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 at 731 - 733 per Clarke JA; see also Hogg and Monahan, "Liability of the Crown", 3rd ed, pp 120-121).

34 The weight of authority as well as the general rejection of the master tort theory of vicarious liability supports the conclusion that an employer is not vicariously liable for the conduct of an employee in the exercise of his employment if the employee is immune from liability. Of course that outcome can be altered by statute. A number of Western Australian statutes expressly preserve liability in the State, including s 137 Police Act 1892; s 182 Young Offenders Act 1994.

35 However, s 124 of the Act does not expressly or impliedly preserve any vicarious liability in the State. Accordingly, if there is no liability for negligence attaching to Mr Tong because of s 124 of the Act, the State is not vicariously liable to the appellant.

The Relationship Between Crown Suits Act and s 124 of the Act

36 Section 5 of the Crown Suits Act 1947 (WA) provides:

"5. Crown to sue and be sued as subject

(1) Subject to this Act, the Crown may sue and be sued in any court of otherwise competent jurisdiction in the same manner as a subject.

(2) Every proceeding shall be taken by or against the Crown under the title 'the State of Western Australia'."

37 The appellant contends that s 5(1) of the Crown Suits Act is inconsistent with there being no vicarious liability in the State for the negligent conduct of an officer who has immunity under s 124 of the Act.

38 There is a general presumption that the legislature does not intend to contradict itself but in fact intends both Acts to operate within their given sphere. As stated by Gaudron J in Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 at 17:

"It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other."

39 Prior to the High Court's decision in Mewett v Commonwealth (1997) 191 CLR 471 it had been accepted that the common law maxim "the King can do no wrong" had the effect that the Crown was legally incapable of committing a tort. Accordingly, the Crown Suits Act and equivalent legislation throughout Australia were thought to impose liability on the Crown and to define its extent. However, based on Mewett, Australian governments, State and Federal, were always liable in tort but enjoyed an immunity from liability and the Crown Suits Act removes that immunity with the effect that the pre-existing liability can be enforced (see Selway, "The Source and Nature of the Liability in Tort of Australian Governments" (supra).

40 It is not suggested that anything of significance turns on whether the Crown Suits Act imposes liability or removes Crown immunity to the extent provided for by Statute. Indeed, the matter was not raised.

41 Under s 5(1) of the Crown Suits Act, the State is in the same position as other citizens. Thus, it will not be liable for an act or omission of one of its servants committed in the course of his or her employment unless the State is directly or vicariously liable for the conduct. An employer (including the State) will not be vicariously liable for the conduct of an employee unless the employee is liable in tort. The State is not liable in this case because of the application of general tortious principles. It is not, as suggested by the British Columbia Court of Appeal in Hill v British Columbia (1997) 148 DLR (4th) 337 at 348, a "back door" way of escaping liability to which the "front door" had been opened by the British Columbia equivalent of s 5 of the Crown Suits Act. Accordingly, there is no inconsistency between s 5 of the Crown Suits Act and s 124 of the Act.

42 The implied repeal of an earlier by a later statute only arises where the statutes are inconsistent. As there is no relevant inconsistency between the two provisions, the issue of implied repeal does not arise. It follows that the presumption against implied repeal does not support the appellant's submission that s 124 provides immunity from suit not immunity from liability.

43 The application lodged by Hydrocats on behalf of the appellant was made to the Chief Executive Officer of the Department under reg 5 of the Regulations.

44 Section 124 of the Act provides immunity for any official of the Department acting with the authority of the Chief Executive Officer in good faith and in the discharge of a duty under the Act. The term "official" is defined in s 3 of the Act to include every person in the service of the State employed for any purpose or duty in the administration of the Act. Mr Tong was a departmental surveyor carrying out the initial survey of the houseboat under reg 5(5) of the Regulations.

45 As stated previously, the trial Judge found that Mr Tong told the appellant that the houseboat would pass survey if the items in a list which he gave to the appellant were installed. The list did not refer to a sign warning that the transom door must not be opened while the houseboat was afloat. Mr Tong did not tell the appellant that the houseboat could not be operated safely with the transom door open.

46 The appellant contends that the s 124 immunity only applies to positive acts and the negligent breach was one of omission. Further, he contends that Mr Tong's negligent conduct did not involve anything done under the Act but rather was conduct incidental to or done by the way in the course of the exercise of a power under the Act.

47 The general principles are not in dispute. Statutory immunity applies only in respect of the actionable performance of statutory functions and not with respect to matters outside such functions: Puntoriero v Water Administration Ministerial Corporation (supra) at 585 [22] per Gleeson CJ and Gummow J, 588 - 589 [37] per McHugh J; Board of Fire Commissioners (NSW) v Ardouin (supra) at 110 per Dixon CJ and 116 per Kitto J.

48 Further, statutory immunity may be confined to liability which would otherwise arise due to a positive act of the government agency rather than to a failure to exercise a function: Puntoriero v Water Administration Ministerial Corporation at 582 [14] per Gleeson CJ and Gummow J, 613 [113] per Callinan J; Australian National Airlines Commission v Newman at 471 per Mason CJ, Deane, Toohey and Gaudron JJ.

49 Puntoriero involved the supply of water by the Water Corporation pursuant to a contract. The Water Corporation supplied contaminated water to the appellants and the gist of their complaint was of the Water Corporation's failure to warn of the danger of which it knew or ought to have known. The immunity provision was in terms that "an action does not lie against the [Water Corporation] with respect to loss or damage suffered as a consequence of the exercise of a function of the [Corporation]". As the contractual supply of water did not involve the exercise of a function which of its nature involved any interference with the rights of the appellant the immunity provision was held to have no application. It was also held that on its proper construction, the provision was confined to positive acts of the Water Corporation.

50 The question in Ardouin was whether the negligent driving of a fire engine on a public highway whilst on its way to the scene of a fire was within the statutory protection conferred by s 46 of the Fire Brigade's Act 1909 (NSW). The section provided that specified officers "shall not be liable for any damage caused in the bona fide exercise of" any powers conferred by the Act or the by-laws. It was held that on a proper construction of the section it did not cover the use of the roadway by Fire Brigade vehicles for the purpose of proceeding to a fire but rather was confined to the exercise of powers which of their nature involved interferences with persons or property. In Ardouin, the court distinguished between damage resulting from an act which would have been the very thing, or an integral part of or step in the very thing which the provisions of the Act or by-laws gave power in the circumstances to do as distinguished from an act which was merely incidental to, or done by the way in the course of, the exercise of the power.

51 In ANA v Newman allegations were made by an employee against ANA that it failed to properly maintain its premises and provide a safe system of work. Section 63(1) of the Australian National Airlines Act 1945 (Cth) provided for a two year limitation period for all actions against ANA or against any person for or arising out of anything done or purporting to have been done under that Act. It was held that the provision did not affect liability for things done, and able to be done, without any need of statutory power.

52 The employee had slipped on a patch of grease in the flight services kitchen where in-flight meals were prepared. The appellant complained of a failure to maintain the floor in good order and condition. On the subject of omissions, the court said:

"The absence of any reference to omissions in s 63(1) provides some ground for thinking that the provision should be confined in its operation. A limitation provision, because it derogates from the ordinary rights of individuals, should be strictly construed. In its context, the reference to acts, unaccompanied by a corresponding reference to omissions, may suggest that the sub-section was intended to apply to positive acts done in the performance of functions and the exercise of powers of such a nature that they involve a special risk of interference with persons or property."

53 The scope of the immunity depends upon the statutory language in question in each case. Section 124 of the Act relevantly provides that no liability will attach to an officer "acting ... in good faith and in the exercise or purported exercise of a power or in the discharge or purported discharge of a duty under this Act".

54 Mindful of the requirement that such provisions be strictly construed and having regard to the High Court's reasoning in Puntoriero and ANA it follows that s 124 should be construed to apply to positive acts done in the performance or purported performance of a power or duty.

55 However, the focus must be on substance rather than form. The breach in this case is formulated in terms of a failure to inform the appellant that the houseboat could not be operated safely in water with the transom door open. However, the relevant conduct is not correctly characterised as an omission. It forms part of Mr Tong's positive act of advising the appellant of what was required to be done to the houseboat for a certificate of survey to issue under the Act. The conduct on which the claim of duty and breach depends is that Mr Tong, in his capacity as an officer of the Department, whilst informing the appellant of outstanding matters that had to be attended to to obtain a certificate of survey omitted any reference to the transom door. It is erroneous to focus on one aspect of a larger picture that constitutes the relevant act or thing complained of. In my view the relevant conduct complained of is properly characterised as a positive act not an omission.

56 The next question is whether the act or thing giving rise to the liability was an integral part of, or step in, the performance of a power or duty under the Act or merely incidental to or done by the way in the course of the exercise of the power.

57 It is not in dispute that the exercise of a power or duty under the Regulations is the exercise of a power or duty under the Act for the purposes of s 124. The Regulations do not expressly empower or require a surveyor acting under reg 5 to inform the owner or his agent of the requirements that must be satisfied before a certificate of survey will issue. However, such is implicit in the regulatory scheme. The purpose of the initial survey is to satisfy the Chief Executive Officer that the vessel complies with the laws of the State. The Department's surveyor is required to carry out the initial survey and prepare a report to the Chief Executive Officer and, upon receiving a satisfactory report from the surveyor, the Chief Executive Officer is required to prepare a certificate of survey. In order to facilitate the regulatory purpose of ensuring that all commercial vessels comply with the laws of the State, with a particular emphasis on safety, a Department surveyor has an implied power to inform the owner (or his agent) of the requirements that in his assessment

must be addressed before he is able to provide a satisfactory report to the Chief Executive Officer so a certificate of survey can issue. Mr Tong's conduct was an integral part of the exercise of his duty under reg 5 and not merely incidental thereto.

58 For these reasons the trial Judge was correct to conclude that the State was not vicariously liable to the appellant. I would dismiss the appeal.

59 EM HEENAN J: I have had the advantage of reading in draft the reasons for decision of McLure J. Her Honour has set out the background of the events and the litigation leading to this appeal and the issues which have been raised by it. I gratefully adopt her Honour's account of these events and issues and agree with her Honour's conclusion that this appeal should be dismissed.

60 I wish only to add some observations of my own upon the appellant's submission that, while s 124 of the Western Australian Marine Act (1982) provided a defence to any claim which the appellant may have advanced against Mr Tong, because of his activities in carrying out the survey of this houseboat, it does not provide a defence to the respondent. The primary submission for the appellant in this regard was that s 124 is procedural rather than substantive, having the effect that it bars only the availability of any legal remedy against Mr Tong, or any other officer or official of the Department of Transport ("the Department") who may be sued as a tortfeasor, without barring or extinguishing any right of action which may be brought against another alleged tortfeasor who is not protected by that statutory immunity. However, with respect, I do not consider that the procedural/substantive distinction has any place in the determination of the question of the alleged liability of the State of Western Australia in this case because, in my view, the true issue is whether or not the effect of s 124 is to confer immunity from liability not only upon the Minister, the Chief Executive Officer or any other official of the Department acting in good faith and in the exercise of a power or in the discharge of a duty under the Act, but also upon the State of Western Australia itself.

61 The procedural/substantive distinction pointed to by counsel for the appellant may sometimes be significant in a different setting, most commonly when a defence relying upon the expiration of a limitation period fixed by statute of a foreign jurisdiction is sought to be relied upon: McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1 per Mason CJ at 18 - 21, or where it is alleged that there has been a waiver or

estoppel preventing a defendant from relying upon a relevant limitation provision: Commonwealth v Verwayen (1990) 170 CLR 394; or in circumstances where leave is sought from a court to commence proceedings after the expiration of a limitation period fixed by such a provision: Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 and Mealing v P Chand t/as Fastfix [2003] NSWCA 205; (2003) 57 NSWLR 305 per Handley JA at 307. No such feature is present in this case where the respondent has expressly pleaded the existence of the immunity which it claims under s 124, and where the immunity provided by that section, to the extent to which it does apply, is conferred by a statute of this State without regard to any time limit.

62 The real issue, therefore, is whether or not, as a matter of statutory interpretation, the immunity of the Minister or any officer or other official as mentioned in s 124 either extends to the State or has the effect that the State is not vicariously liable for acts or omissions of such a public officer or official which, through the failure to exercise reasonable care, have caused loss or damage to the appellant. Plainly, the State of Western Australia is not expressly included among the specified class of persons or bodies to whom s 124 specifies that no liability shall attach. However, the fact that no liability, whether direct or vicarious, may attach to the Minister does not lead automatically to the conclusion that the State itself may not be liable, whether directly or vicariously. There may be situations in which the State could be liable in such circumstances because of the effects of other legislation as, for example, has been illustrated by the decision of Edgecock v Minister for Child Welfare [1971] 1 NSWLR 751. However, in that case, the statutory provision relied upon by the defendant/respondent, was s 158 of the Child Welfare Act (1939) (NSW) which was couched, not in the terms of immunity from liability, but as a specification of the grounds upon which an action for damages might be brought against the Minister under that Act, rather than under some other applicable legislation.

63 Further, that the State of Western Australia is not expressly identified by s 124 as a body to which no liability shall attach is plainly capable of being construed as an indication that the statute does not include the State within the scope of the immunity conferred. Such an approach by a court would be consistent with the strict interpretation to which such immunity provisions are to be subjected: Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 199 CLR 575. However, this is not a case where it was ever alleged or held that the respondent was directly liable, as distinct from vicariously liable, for the lack of care which led to the loss of the houseboat. Consequently, the question of whether s 124 means that no liability will attach to the State in circumstances where the State owes a direct or non-delegable duty of care to the person who claims to have suffered loss or damage by its negligent acts or omissions, such as for example by an employee of the Department claiming in respect of an injury suffered by him or her in the course of employment due to an alleged unsafe system of work, does not arise on this occasion. Had it done so, different considerations may well have required attention but those possibilities need not be addressed in this case.

64 Accordingly, the crucial issue for decision on the appeal is whether the State will be vicariously liable for an alleged negligent act or omission of an officer or other official of the Department for a loss he caused to a person such as the appellant, but where no liability attaches to that officer or official by reason of s 124 of the Act.

65 The submission for the respondent that where the officer or official of the Department is immune from liability, there can be no liability by the State seems to me to imply, at least to some extent, that for vicarious liability to exist it must coincide with the liability of the State's official, officer or employee, and that the vicarious liability only arises because of legal liability of the subordinate State officer or official. This seems to be very close to a proposition that vicarious liability exists only because of the liability in tort of a person for whom the State would, otherwise, be answerable "in the same matter as a subject" - subs 5(1) Crown Suits Act (1947) - s 5(1).

66 The Solicitor General, appearing for the respondent, submitted that this issue was resolved against the appellant by passages in the judgment of Windeyer J in Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295 at 301 and again at 303 where his Honour concluded, first at 301:

"But however the principle of liability should be expressed, I think that the Commonwealth is only liable for the acts or omissions of a servant if the servant would himself be liable: ... "

"I should add that I have considered whether the question of the liability of the Commonwealth can be separated from that of the liability of a member of the forces at the suit of a fellow member. Is the case one in which an immunity of the servant can co-exist with the liability of the master, the Commonwealth, thus bringing the topic into the same category as the much discussed case of Broom v Morgan [1953] 1 QB 597 to which Lord Pearce referred in the passage I have quoted above? [Imperial Chemical Industries Ltd v Shatwell [1964] UKHL 2; [1965] AC 656 at 686] I think not. ..."

Nevertheless, it is necessary to recall that the decision of Windeyer J in Parker v The Commonwealth (supra) was, in several significant respects, disapproved of subsequently in Groves v The Commonwealth [1982] HCA 21; (1982) 150 CLR 113 by Gibbs CJ at 117 - 119 and by Stephen, Mason, Aickin and Wilson JJ at 121 - 134. However, the decision in Groves did not, directly or indirectly criticise or supplant the observations made by Windeyer J about the need for the original tortfeasor, in this case Mr Tong as an officer or official in the Department, to be liable at law before the Crown or the State could be found to be vicariously liable for any tort which the officer, but for his statutory immunity from liability, would have committed. In this regard, there are a number of passages in the judgments in Darling Island Stevedoring and Lighterage Company Ltd v Long [1957] HCA 26; (1957) 97 CLR 36 which support the appellant's case. In that case, the employer stevedoring company succeeded in its appeal against a finding that it was vicariously liable for a breach of the statutory obligations created by reg 31 of the Navigation (Loading and Unloading) Regulations because, upon the proper interpretation of reg 4, those obligations were cast upon the person actually exercising control on the spot where the unloading operations were being conducted, and did not place any such obligation for liability upon the employer of the person in charge. In reaching that decision several of the Justices had occasion to examine the principles applying to a case where it was being alleged that an employer was vicariously liable for a tort, or a breach of statutory duty alleged to have been committed by an employee in the course of that employment. In this regard Webb J said, at 54:

"Then as to whether the employer is liable in civil proceedings for a breach of reg 31 by his servant: the employer is not a 'person-in-charge' and so has no statutory duty, unless he actually conducts the operation referred to in reg 31, whether on the spot or from a distance, say through the telephone. And the law does not attribute to the employer the liability that attaches to the servant: Twine v Bean's Express Ltd (1945) 62 TLR 155; (1946) 1 All ER 202 at 204. Then the only duty the employer could have, if he was not a 'person-in-charge' would be to direct the employee's attention to reg 31 and to require him to observe it. But this would still not be a statutory duty of the employer, although arising out of one: if it exists, which I doubt (as to this see Salmond on Torts 11th edition (1953), p 118) it is a duty at common law and its breach constitutes ordinary actionable negligence, which, however, was negatived in the earlier proceedings between these parties, and cannot be again litigated between them."

This passage appears to mean that the employer has no vicarious liability for a breach of statutory duty, where the duty reposes only upon the employee, unless the employer has directed or participated in the operation which is conducted in breach of the regulation and that, for this reason, the liability of the employee, for breach of statutory duty, as distinct from negligence by the employee, is not attributed to the employer. Fullagar J also distinguished between a case of vicarious liability alleged to arise out of a negligent act or omission by an employee, and a case of alleged vicarious liability arising from a breach of statutory duty by an employee. Referring to an employer's common law vicarious liability for the torts of his employee, as distinct from the situation which was before the court in the case under appeal, Fullagar J said at 57:

"The rule is, in my opinion, rightly stated, as it always is, in terms of liability and not in terms of duty. The liability is a true vicarious liability: that is to say, the master is liable not for the breach of a duty resting on him and broken by him but for a breach of duty resting on another and broken by another. The notion of liability without breach of personal duty is not a legal impossibility."

"These words, however, are, in my view, incorrect as applied to a case where the liability of the employer is not personal but vicarious. In such a case if the servant is 'immune', so is the employer."

as approving the approach of Lord Morton of Henryton in Stavely Iron and Chemical Co Ltd v Jones [1956] AC 627 at 639.

"The master's liability, when it exists, is not a liability substituted for that of the servant. It exists, I think, not because the servant is liable, but because of what the servant has done. It is a separate and independent liability, resulting from attributing to the master the conduct of the servant, with all its objective qualities, but not with the quality of wrongfulness which, in an action against the servant, it may be held to have because of considerations personal to the servant."

And, at 62, Kitto J also made reference to Stavely Iron and Chemical Co Ltd v Jones (supra) and went on to say:

"Nothing said by any of their Lordships appears to me to show disagreement with the view expressed in a note on the case of Broom v Morgan [1953] 1 QB 597 in the Law Quarterly Review (1953), vol 69 at p 297 as to what was described as 'an error in the analysis of a master's vicarious liability':

'The error lies in saying that a master is liable "for any tort committed by his servant", when the correct statement ought to be that a master is liable "for any negligent or intentional wrongful act committed by his servant". In other words the master is liable not for the tort, but for the act of his servant. It is immaterial therefore whether the servant is himself liable or not.' "

"The early learning on this branch of the law does not suggest to my mind any reason for forming the opinion a master is, or ever was, answerable for the torts, as distinct from the acts of his servant; on the contrary the development of the modern principle consisted in the extension of a notion which identified masters with the acts of their servants but, in the extension of the area of liability, the development did not effect a complete identification as there-to-fore."

68 These observations in Darling Island Stevedoring and Lighterage Company Ltd v Long (supra) are, strictly speaking, obiter because the decision in that case rested upon the conclusion that reg 31 did not impose a statutory duty upon the employer and that, not being personally involved in the breach of a statutory duty, the employer was not vicariously for a breach of duty resting exclusively upon the employee. Nevertheless, they constitute high persuasive authority for the proposition that a master may be vicariously liable for the actions or omissions, of his or her employee occurring in the course of employment independently of whether or not the employee is personally liable at law in respect of that same conduct.

69 On that approach one looks to the question of whether, had Mr Tong been employed by a private employer, that private employer would be vicariously liable for his acts or omissions notwithstanding that Mr Tong enjoyed the protection from liability conferred upon him by some provision analogous to s 124 of the Act. If such an employer were liable for the acts or omissions of Mr Tong, rather than any tort committed by or any liability at law resulting to Mr Tong there would not seem to be any reason in principle why vicarious liability in the employer should not result. The proposition that vicarious liability will only be placed upon an employer when the employee is also liable at law connotes that the employer is vicariously liable for the liability of the employee rather than for the actions or omissions of the employee, a position at variance with some, at least, of the dicta in Darling Island Stevedoring and Lighterage Company Ltd v Long (supra). This, therefore, seems to leave the respondent's submission, and the authorities upon which it is based, somewhat doubtful.

70 Nevertheless, the so-called rule that the employer will only be vicariously liable if the employee is also liable has been applied in varying degrees by other courts of Appeal, notably in De Bruyn v South Australia (1990) 54 SASR 231 and in this Court in Robertson v R (1997) 92 A Crim R 115 per Steytler J at 121 - 122, with whom Malcolm CJ and Franklyn J agreed.

71 In De Bruyn v South Australia (supra) at 235 King CJ followed and applied the observations of Windeyer J in Parker v The Commonwealth (supra) saying:

"It follows from the above that if s 29(1) of the Highways Act operates, in a factual situation to which it applies, to prevent a matter or thing which would otherwise be tortious from amounting to a tort if done by the Commissioner or any inspector or other officer in good faith for the purpose of executing the Act, the Crown, and therefore the defendant State of South Australia, is not vicariously liable for such a matter or thing. If the law does not impose liability in tort upon the person perpetrating the act or omission said to constitute the tort, the State is not liable."

Perry J agreed with the learned Chief Justice at 245. However, while agreeing in the decision with King CJ and in the orders disposing of the appeal, Legoe J said, at 245:

"I would expressly disassociate myself with any suggestion that the availability of the limited defence to the Crown goes beyond the conferral of immunity from suit and operates to render the conduct non-tortious. Once the plaintiff has established that negligence alleged as a fact then her rights pursuant to s 10(1) of the Crown Proceedings Act permits her access to the courts. There is still 'a tort' established. The question (argued simply on the pleadings in these proceedings so far) then becomes a question as to whether the Crown is subject to 'any liability in respect thereof'."

which I take as meaning that the liability of the State, alleged in that case, is not to be excluded simply because the departmental officer whose neglect caused the damage complained of has no personal liability at the suit of a plaintiff.

72 In Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 Clarke JA, with whom Priestly JA agreed (McHugh JA dissenting), referred to the contrary views of Kitto and Taylor JJ set out in Darling Island Stevedoring and Lighterage Company Ltd v Long (supra) and said:

"This view has been criticised by text writers who advanced convincing reasons why it should be rejected (Glass, McHugh and Douglas, The Liability of Employers 2nd edition (1979) at 86 et seq; Salmond on the Law of Torts 17th edition (1977) at 454). Lord Denning who departed from the traditional view expressed by Fullagar J in Long later returned to it - Rose v Plenty [1975] EWCA Civ 5; [1976] 1 WLR 141 at 144."

73 In Hogg and Monahan, "Liability of the Crown" 3rd ed, at 120 - 121, the learned authors observed:

"The common practice is to include a privative clause in a statute establishing a department or agency of government, the clause immunises the employees within that department or agency from liability for damages for acts done in good faith in the intended execution of their duties. If the clause does not expressly preserve the vicarious liability of the Crown itself, the clause will immunise the Crown as well: the general rule is that the liability of the servant is a precondition of the vicarious liability of the master. But such clauses can be drafted so as to preserve the vicarious liability of the Crown ... ."

74 Quite why liability of the employee should be a precondition to vicarious liability of the Crown or other employer is not altogether clear although the notion seems to be infused with the idea respondeat superior which is one of several historical maxims sometimes quoted as supporting, if not explaining, the policy behind vicarious liability. That this is an inadequate basis for explaining the doctrine has long been recognised, as the authorities referred to in the judgment of McLure J reveal. In the light of the recent decisions of the High Court in Scott v Davis (2000) 204 CLR 333; Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21; Frost v Warner [2002] HCA 1; (2002) 209 CLR 509 and State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 the absence of such an explanatory doctrine is now accepted - see per Gleeson CJ at 535 - 539; Gaudron J at 553; Gummow and Hayne JJ at 580 and Kirby J at 611 in Lepore. If, instead, the proper rationale for the imposition of vicarious liability is whether there is sufficient "connection" between the wrongful act or omission of the employee to impose a vicarious liability upon the employer who is, ex hypothesis, entirely without fault, it would seem to be difficult to support the proposition that that vicarious liability, or the extent of that liability, should depend on actual liability by the employee.

75 Nor does there appear to be a convincing basis for a rule of statutory interpretation to the effect that where the immunity of the State officer, official or employee is conferred by legislation, immunity also results for the State unless the statute expressly preserves the liability of the State which would, otherwise, remain. The learned Solicitor General cited many examples in the statutes of this State where such a liability of the State had been expressly preserved; namely, Bail Act 1982, s 63; Fines Penalties and Infringement Notices Enforcement Act 1994, s 107(4); Forest Products Act 2000, s 67; Environmental Protection Act 1986, s 121; Land Administration Act 1997, s 259; Police Act 1892, s 137 and several others.

76 The determination of the vital issue in this appeal therefore depends upon the resolution of highly persuasive dicta in the High Court coupled with established approaches to the strict construction of statutory provisions removing or reducing common law rights, on the one hand, and at least three decisions of intermediate courts of appeal which adopt and apply the proposition that the immunity of the employee results in the elimination of vicarious liability for the employer, unless expressly preserved. All this is against a background where those conclusions appear to depend, to a significant degree, upon the identification of an acceptable rationale for the doctrine of vicarious liability - a doctrine which is now regarded as being, if not opaque, at least not fully developed.

77 In such a situation, in spite of the uncertainties, I consider that I should follow the approaches established in Cowell v Corrective Services Commission of New South Wales (supra), Robertson v R (supra), even if the conclusion in that latter case was based on a concession by counsel, and, most particularly, by the Full Court of the Supreme Court of South Australia in De Bruyn v South Australia, notwithstanding the qualification expressed in that regard by Legoe J as already mentioned. Having made the choice to follow and apply those three authorities, it follows that this appeal should be dismissed.

78 LE MIERE J: I have read the reasons for judgment of McLure J. I agree that the appeal should be dismissed, for the reasons stated by her Honour.

Australian Marine Act 1982

Reform (Married Women and Tortfeasors) Act 1935

Women's Property Act 1882

Penalties and Infringement Notices Enforcement Act 1994

National Airlines Act 1945

Marine (Construction, Stability and Engineering) Regulations 1983

Marine (Surveys and Certificates of Survey) Regulations 1983

A Marine (Surveys and Certificates of Survey) Regulations 1983

Administration Act 1997

Bell v The State of Western Australia [2004] WASCA 205

At a glance

Court

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Judgment (163 paragraphs)

Bell v The State of Western Australia [2004] WASCA 205 (10 September 2004)

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Legislation Cited (14)

Cases Cited (33)