Hobbs v Petersham Transport Co Pty Ltd; Petersham Transport Co Pty Ltd v ASEA Electric

Hobbs v Petersham Transport Co Pty Ltd; Petersham Transport Co Pty Ltd v ASEA Electric - [1971] HCA 26 - HCA 1971 case summary — Zoe

[66]

The action and third party claim were heard by a judge without a jury. The learned trial judge found a verdict for the plaintiff in the principal action and for the defendant in the claim against the third party. The verdict in each case was general. But as the judge gave reasons for his findings, the lack of evidence to support one of the counts need not be fatal to the verdict. He concluded that the vehicle was being driven at a proper speed and in a proper manner, that the driver had no warning of the impending fracture of the axle at a time when he could have avoided its consequences, and that he did exercise all the care that could have been expected of him. However he held that, on the authorities, there were circumstances in the case from which "One can say that there has been a prima facie case of negligence established by the plaintiff that is to say by reason of the non-delivery of the goods". He found that the failure to deliver was caused "as a result of the actual fracturing so causing the accident and further that this can be caused by a fracture of an axle warning of which might be discovered and remedied by careful and proper inspection". He held that there was a duty on the defendant company to institute and carry out such an inspection as might have revealed the development of the fracture which finally caused the mishap. He thought it would be reasonable for an owner of heavy vehicles periodically to check for any indications of fractures which might be about to occur, to institute a proper and regular system of maintenance to discover any signs of cracking of an axle and to take corrective action if they did occur. The trial judge commented on the absence of any evidence from Mr. Looker or any explanation of his failure to do so and the failure of the surviving member of the partnership of Hobbs Bros. to give any evidence of any system of maintenance or inspection carried out at the depot. He placed some weight on the absence of these witnesses notwithstanding the considerable lapse of time between the accident and the date of the trial. He concluded:

[98]

These are two appeals from the judgment of the Supreme Court of New South Wales (Court of Appeal Division) [1] dismissing an appeal from the judgment of Nagle J. in an action at common law. The plaintiff complained that certain valuable electrical equipment that it owned, which it had engaged the defendant Petersham Transport Co. Ltd. Pty. to carry by road from Sydney to an electric power station at Ashford in the north of New South Wales, had not been carried safely but had been badly damaged enroute. For the discharge of its contractual obligations to the plaintiff, the defendant had employed a firm of carriers known as Hobbs Bros. to provide a vehicle and driver and undertake the actual carriage of the goods. While the goods were on a vehicle belonging to the partnership it ran off the road when on its way to Ashford. The goods were thrown off and damaged. The plaintiff's contract with the defendant for the carriage of the goods was made partly orally but confirmed by an exchange of letters. The defendant on its letterhead was described as "General Carriers and Haulage Contractors". The tenor of the letters, especially the plaintiff's letter of 7th August 1957, suggests that the agreement was that the defendant should be the carrier, not that it was merely a forwarding agent employing carriers. But I do not think that the plaintiff placed such reliance upon the skill and capacity of the defendant that by employing a sub-contractor the defendant broke its contract with the plaintiff. The learned trial judge refused to allow the plaintiff to rely on any allegation of that kind. He also refused to allow the plaintiff to adduce as a breach of contract the fact that the sub-contractor was not carrying the goods directly to Ashford but was intending to make a detour into Queensland as a "border hopping" exercise. I think that, having regard to the form of the pleadings, his Honour was right in rejecting these contentions. I would add that the two cases on which the plaintiff sought to rely - Lilley v. Doubleday [1] and Edwards v. Newland & Co. [2] - were cases of sub-bailment by a bailee. There goods had been received by a person as bailee for custody. He without authority had handed them to the care of another person. That is not what happened in this case.

[108]

It has been assumed throughout the argument that the defendant was a bailee of goods of which the plaintiff was bailor and that the liability of the defendant is to be measured accordingly. This proposition has not been questioned. Nevertheless I think that it is mistaken, and that the mistake is critical. The plaintiff's declaration alleged that the defendant "was a carrier of goods for hire and the plaintiff delivered to the defendant and the defendant received as such carrier certain goods of the plaintiff ". But, as I understand the case, there was no evidence that the plaintiff ever delivered the goods to the defendant. They were delivered by representatives of the plaintiff company directly to Johnson, the servant of the Hobbs brothers. They had been lying on a wharf at Pyrmont, Sydney. They were loaded directly from the wharf on to the lorry belonging to the Hobbs brothers, of which Johnson was the driver. Johnson had been told by one of the Hobbs to go to the wharf and there report to a Mr. Howe, who was the manager of the defendant company, and take directions from him. Johnson met Howe at the wharf. Howe pointed out the cases to be loaded on Johnson's vehicle. They had been unshipped and put upon the wharf earlier in the day. The actual loading on to Johnson's vehicle was done by a crane operated, it seems, by a wharfinger or stevedore. The articles in question were a part of a shipment of electrical goods that the plaintiff had imported from abroad. These were over a period of some days being taken from the wharf by different carriers. These carriers had, it seems, all been engaged by the defendant. In each case Howe supervised the loading, including the loading of Johnson's vehicle. He did this in association with a Mr. Badman, an employee of the plaintiff who was at the wharf throughout and who checked the delivery of the plaintiff's goods to the various carriers. When the goods were on the wharf they were apparently in the custody of the plaintiff's shipping agents. They were never, so far as the evidence shews, in the custody of the defendant.

[113]

This rule has been seen as an anomaly. It is suggested that a carrier's failure to deliver goods in accordance with his contract is simply an illustration of a res ipsa loquitur: that it is an evidentiary fact from which, in the absence of an explanation, an inference can be drawn of default on the part of the carrier, but that the ultimate onus is upon the plaintiff and that it never shifts. This proposition would be irrefutable if the rights of the parties depended simply on a contract to carry with due care. But that, it seems, is not so when goods having been delivered into his custody, the carrier has assumed the duties of a bailee for reward. An explanation of the apparent anomaly may well be that the duty of a bailee to use due care does not arise from contract or from tort. It could in former times have been asserted in either assumpsit or in case: but it is now generally recognized as sui generis. If the matter be put in terms of an implied undertaking or promise by the bailee, it is that he will re-deliver the goods to the bailor or whoever he appoints to receive them, except he, the bailee, be prevented from doing so by events not caused by negligence on his part, proof of the exception being upon him. Seen in this way, the burden that is put upon a bailee of exonerating himself when he fails to re-deliver the goods is simply a peculiar incident of the law of bailment. I accept the analysis that Sholl J. made after a survey of the authorities in his judgment in Fankhauser v. Mark Dykes Pty. Ltd. [3] . I appreciate that the second count of the plaintiff's declaration tenders an issue of fact to be proved by the plaintiff. I realize too that to say that the bailee must exonerate himself when the facts raise a prima facie inference of negligence may well seem anomalous when set alongside the doctrine that this Court has established for Australia of the onus of proof in cases when res ipsa loquitur is put forward: as in Anchor Products Ltd. v. Hedges [4] . And I recognize that some judgments in which the onus is said to be on the carrier to negative negligence are equivocal. For example, in the New Zealand case to which I have referred Reed J. placed the onus of proof on the carrier, quoting the decision of the New Zealand Court of Appeal in Aurora Trading Co. Ltd. and Jackson v. Nelson Freezing Co. Ltd. [5] . Yet he went on to refer [6] to cases in which "a reasonable explanation of the loss was given, which caused the onus to shift to the plaintiff to establish negligence. And that no doubt", he said, "is the law". And in the United States there have been cases in which a loss of articles bailed has been taken to be a res ipsa loquitor. One explanation that has been put forward is that an inference of negligence arises if the loss be not explained by the bailee, the burden of adducing explanatory evidence being on him because the facts are peculiarly within his knowledge and not within the knowledge of the bailor. However, despite all these countervailing considerations I think that the rule as to the onus, being an incident of the law of bailment, is too firmly established to be shaken by demands for logical consistency with the consequences of res ipsa loquitur in other circumstances.

[117]

Although the Hobbs brothers were independent contractors, the defendant is, by well-established common law rules, liable for their negligence in relation to the carriage of the plaintiff's goods. That is because the defendant impliedly promised the plaintiff that the goods would be carried to their destination with due care. If it procured someone else to perform the carriage for it, it became liable for his, the sub-contractor's negligence: Doolan v. Midland Railway Co. [1] ; John v. Bacon [2] ; Machu v. London and South-Western Railway Co. [3] . The rationale of this may be debatable. But I think that Professor Atiyah, who discusses it in his book Vicarious Liability in the Law of Torts (1967) (at pp. 361-362), rightly describes it as a form of vicarious liability. In Riverstone Meat Co. Pty. Ltd. v. Lancashire Shipping Co. Ltd. [4] Lord Radcliffe spoke of it as "the carrier's responsibility for the diligence of all those whom he employs to discharge his own primary duty". I think therefore that the plaintiff would be entitled to recover damages from the defendant if it proved that the accident occurred by negligence for which the Hobbs brothers were responsible either because their vehicle was negligently driven, or because there had been negligence in maintaining it so that it was not in a serviceable condition. But to establish liability on the part of the defendant it would be necessary for the plaintiff to prove this negligence. The onus was on it. It could not found its case on the onus that a bailee has; for the defendant was not a bailee. It could claim that the fact that the vehicle ran off the road spoke for itself of negligence, and called for an explanation. But the explanation of the accident in a broken axle left it upon the plaintiff to prove that this was the result of negligence. The mere fact that the mechanism of a vehicle fails does not itself shew that the owner or driver was negligent. No doubt a failure to maintain a vehicle in good order may in some cases amount to negligence. But even a common carrier of passengers is not to be held responsible for the consequences of a latent defect in his vehicle not discoverable by reasonable inspection: Readhead v. Midland Railway Co. [5] ; Webb v. Cassidy [6] . I need not rehearse the evidence. It makes it abundantly clear that, the onus being on the plaintiff to prove negligence, the plaintiff's case failed. The appeal should therefore be allowed.

At a glance

Court

Decision date

Before

Source

Judgment (119 paragraphs)

Cited By (10)