Heimann v {pl

Heimann v {pl - [1941] HCA 25 - HCA 1941 case summary — Zoe

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of this Act." And there is a further provision in the Tas- Act, sec. 63 (2), as follows: " For the purpose of this Part | of every policy of insurance thereunder, every person other an the owner who is at any time in charge of a motor vehicle, ith the authority or acquiescence of the owner, shall be deemed to agent of the owner, and to be acting within the scope of his tl y in relation to such motor vehicle ; and any such person is \is Part called an ' agent.' " word " permit" means " intentionally allow " (Goldsmith v. (1), per Lawrence J.). But intention to commit a breach of e is not required (McLeod y. Buchanan (2) ). Permission

be given expressly, or it may be inferred from circumstances "carry with " them a "' reasonable implication of a discretion ty to use" the motor vehicle "in the manner in which it used" (3). But, subject to the proper construction of the the question whether a person has been permitted to use vehicle is one of fact. The provision of sec. 63 (2) also es a civil liability upon an owner in respect of the acts of in charge of a motor vehicle with his authority or acquies- but possibly only to the extent of the liability in respect of hich insurance is required by the Act : Cf. Stewart v. Bridgens (4). he relevant facts in the present case are that in 1938 an agreement a8 made between the Perpetual Insurance and Securities Ltd., er referred to as "the company," and one Parish, for the » and purchase of a motor vehicle. It was in common form. h was entitled to the use of the vehicle, paying rent or hire for the term mentioned in the agreement, unless sooner pursuant to the terms of the agreement. And, subject nt of all sums due under the agreement, he was also given ption at any time during the hiring to purchase the vehicle. He thus entitled to the use of the vehicle. He also had a special pperty in the vehicle during the continuance of the agreement | for the purposes expressed or implied by it, and an option to 'it on making certain stipulated payments and observing the ent (Helby v. Matthews (5) ). The agreement contained a n that Parish should throughout the term of the agreement in all respects with the requirements of the Traffic Acts and qulations, and it also provided that the company should be entitled ure for its own benefit the motor vehicle against damage by fire

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e motor vehicle on the occasion when Broad was injured by his ligence (Richards v. Port of Manchester Insurance Co. Ltd. (1) ; Gold- th v. Deakin (2) ; Osborne v. Richards (3) ; Daniels v. Vaus (4) ). as already stated, no policy of insurance had been obtained in on to the use of the motor vehicle by Parish in accordance with he Traffic Act 1925. The liability of the company to the appellant es is thus established. , it appears to me that the provision of sec. 63 (2) also ves the company in liability to the appellant. The facts ly detailed warrant the conclusion in fact that Parish was at time of the accident to Broad in charge of the motor vehicle the acquiescence of the company. The hire-purchase agree- it involves the company's assent to his possession and use of the vehicle. It was said, however, that the company was not the wner " of the vehicle within the meaning of the Traffic Act 1925, y reason of the definition in sec. 3 (1) of "owner." In this , unless the contrary intention appears, "' owner,' when used reference to a motor vehicle, means the person registered in e record of motor vehicles kept in accordance with section eleven e owner of such vehicle." Registration as owner is evidence of rship and sufficient proof of the fact, but both the subject r and the context of sec. 63 (2) indicate that registration is the only evidence of ownership but that it also extends to persons ho are in fact owners although not so registered. e notice of motion by way of cross-appeal should be dismissed. y opinion, there was no evidence, or no sufficient evidence, of fault on the part of Broad. He was on the right side of the and Parish simply ran over him in circumstances that gave little or no chance of avoiding the collision. I agree with the of the facts in relation to this aspect of the case taken by my et Dudley Williams. : result is that the judgment in favour of the company should set aside and judgment entered for the appellant against the ompany for £1,400 damages, apportioned amongst the appellant children in the same amounts as appear in the judgment Parish.

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time of the accident. The former company was a dealer, the tter a finance company. At the time of the accident Parish was in default under the agreement. He had broken his covenant for payment on the stipulated rental, and had not registered the otor car under the T'raffic Act. The motor car was then registered inthename of Crawford. Clark J., who tried the case, gave judgment in the sum of £1,400 for the appellant against the defendant Parish, but for each of the other defendants. He held that Parish was guilty of negligence. The defendant Crawford set up the defence of con- ributory negligence and his Honour held that this defence was ti ed. An application by the other defendants to enable em to get the benefit of this defence in their cases respectively was refused. His Honour reached the conclusion that the action breach of statutory duty should fail on the ground that none of defendants who was sued on that count caused or permitted rish to use the car. The proof that the appellant had suffered loss in consequence of the failure to comply with sec. 63 (1) of the Traffic Act 1925 was complete. It was shown that Parish was without means to satisfy the judgment which the appellant recovered i him. His Honour held also that Parish was not in charge of the motor vehicle with the authority and acquiescence of any of the other defendants and that the claim which the appellant made with the assistance of sec. 63 (2) therefore failed. _ The notice of appeal questions the decision of Clark J. on two only the many questions raised by the pleadings and decided by him. e two questions are, first, whether Perpetual Insurance and Securities Ltd. did permit Parish to use the motor car, the subject f the hire-purchase agreement, and secondly, whether Parish was n charge of the motor car with its acquiescence or authority. The company cross-appeals against his Honour's refusal to allow it to add to i its defence the plea of contributory negligence. This question would not be material unless the appeal succeeded. The appellant, owever, contests the finding of contributory negligence besides ting the cross-appeal. "The first question for decision then is whether the company did permit Parish to use the car, the subject of the hire-purchase ment. There is no ground for saying that it permitted him do so except that it entered into this contract of hire with n option to purchase and delivered the car to him for use to the terms of the agreement. The real nature of the ction was that Parish was to obtain possession of the motor and to be entitled to its use for the term of the hiring so long as paid the company the stipulated rental and performed his

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lv. Pickard (2) Lord Ellenborough distinguished a bailment in the legal possession remained in the owner and a hiring under the bailee obtained the legal possession of the chattel. In the case he used these words : " Show a letting for a certain time n, and the possession would be in him ; but a mere gratuitous sion to a third person to use a chattel does not, in contem- of law, take it out of the possession of the owner, and he maintain trespass for any injury to it while so used." In Hall d (2) Lord Ellenborough said : - ' This is not like a gratuitous "permission to use a chattel, as in Lotan v. Cross (3) where the posses- : constructively remained in the owner. The horses were let to hire for a certain time to Dr. Carey, who had a right to retain them 'till that was expired, and who was driving them by his own servants when the mischief was done." It was there held that the owner's 'remedy was case and not trespass. The substance of each of the transactions to which these authorities referred as involving a permis- 'sion to use a chattel was a personal licence to use it. The word permission may have a more extensive meaning than gratuitous

bailment. It may mean a licence, leave or liberty to use a chattel. But the word "permit" does not, in my opinion, suggest or "imply 'a transaction which has the attributes of that now in question. 'The company did not reserve to itself the control of the car out of "the rights passing to Parish under the contract. In the present case _ the owner did not by its contract say that it permitted Parish to use the motor car or employ any synonym for the word " permit." 'The operative words whereby Parish obtained the car were "let on hire," expressing the owner's act, and " take on hire," expressing Parish's act. These words have a well-known significance. The owner thereby parted with legal possession of the motor car and its right to recover possession of the property for the term of the bail- ment. As Parish became entitled to use the car because of the egal effect of these operative words in the contract, I do not think : it would be in accordance with ordinary usage to say that ' 'was permitted by the company to use the car, and it is to be membered that the intention of sec. 63 (1) is primarily to create offence: Cf. Abrahams v. The King (4). No-one would doubt 'that a sale is not a permission to use the article sold. It seems to that it would be equally erroneous to say that " when goods are

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Before

Source

Judgment (115 paragraphs)

Parties

Cited By (2)