Sydney, 1967, August 21, 22; 1968, June 14. 14:6:1968

BARWICK C.J. According to the facts asserted in the pleadings in this action injured when the vehicle which he was driving came into collision with a vehicle owned by the Government of New South Wales or, as it is also said, by the Police Department of that Government, and carelessly driven by a police officer in the course of his employment as a constable in the service of that department. (at p275)

2. After the commencement of this action against the appellant as the nominal defendant appointed in that behalf pursuant to the Claims against the Government and Crown Suits Act, 1912 (N.S.W.), the police officer in an action commenced in a District Court, presumably before the commencement of the present action, recovered a verdict against the respondent upon an allegation that the respondent had caused the collision between the vehicles by his, the respondent's negligence. In that action the respondent had alleged that the police officer was guilty of contributory negligence. But, by its verdict for the police officer, the jury found that issue and all that it necessarily involved against the respondent. (at p275)

3. The appellant sought in this action to plead the verdict and judgment in the District Court action as an answer to the respondent's claim; that is to say, the appellant has claimed that because of the findings involved in the verdict and judgment for the police officer in the District Court, the respondent is estopped from asserting in this action that the police officer by his want of reasonable care in the driving of the Government's car had caused the collision and its resultant damage. (at p275)

4. To this pleading, the respondent demurred. The Supreme Court (Court of Appeal Division) upheld the demurrer holding that no issue estoppel available to the appellant arose out of the District Court judgment because of the lack of identity of the parties to the two actions, and of any relevant privity between the Government or the Police Department and the police officer. (at p275)

5. The appellant now, by its leave, appeals to this Court against the upholding of the respondent's demurrer. (at p275)

6. The question is whether the respondent is prevented by any of the findings in the former action from asserting in this action that the police officer drove the appellant's car with lack of that care which the circumstances required. The principles applicable to the resolution of that question in Australian law are well settled. The relevant law is the common law and both English and Australian decisions as to it indicate a clear conclusion. In thus emphasizing the position in Australia, I mean to acknowledge that there has been divergent treatment of the question in some parts of the United States of America. In my opinion, apart from the obligation to respect binding precedent, I would not be prepared to accept the approach manifest in the American decisions on this question to which we were referred in argument. (at p276)

7. Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been indentical in each case. Of its nature such an estoppel must be available to and operative in respect of each party; or, as it is said, estoppels must be mutual. (at p276)

8. Out of the incident which gave rise to the action in the District Court and now gives rise to this, there could arise a number of possible causes of action. First, the police officer might claim a breach of the respondent's duty towards him, with resultant injury to him personally. Second, the respondent might claim a breach of the police officer's personal duty to him, the respondent, or a breach by the police officer of a duty owed by the Government to him, the respondent, in either case with resultant damage to the respondent. The respondent might make these claims concurrently in an action against both the police officer and the Government. Third, the Government might claim a breach by the respondent of his duty to it, with resulting damage to its vehicle. In the trial of the first and third of these claims the police officer's lack of care for himself, or the breach of his duty of care to the respondent could be determined. (at p276)

9. Here the prior action said to give rise to the estoppel pleaded by the appellant was between the police driver, in his own right and not in any sense in any representative capacity. It is said that the finding that the police driver - to use the current idiom - was not guilty of contributory negligence, decided the very issue which would arise in this action and that the appellant is a privy of the police officer in relation to this issue. (at p276)

10. I would first examine the claim that the issues to which reference is thus made are identical. The importance of the identification of the precise issue decided in the first place in order to ascertain whether it is identical with what is sought to be litigated in the second place has been emphasized in the reported cases. Of these, perhaps, New Brunswick Railway Co. v. British & French Trust Corporation Ltd. (1938) 4 A11 ER 747, at pp 756, 767, 770 on this point is the most illustrative. (at p277)

11. There has been some judicial discussion in England, in New Zealand and in Australia as to the elements involved in a finding of contributory negligence made in an action for damages for personal injury sustained in road accidents: see particularly Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446 ; Edwards v. Joyce [1954] VicLawRp 31; (1954) VLR 216 ; Noall v. Middleton [1961] VicRp 43; (1961) VR 285 ; Marginson v. Blackburn Borough Council (1939) 2 KB 426 ; Nance v. British Columbia Electric Railway Co. Ltd. (1951) AC 601 ; Clyne v. Yardley (1959) NZLR 617 . (at p277)

12. Although there may possibly be much to be said for the view that an analysis of such cases in terms of duty is really unnecessary and not always helpful, to adopt the expression of my brother Windeyer in Hargrave v. Goldman [1963] HCA 56; (1963) 110 CLR 40, at p 63 , it must be said

"the concept of a duty of care, as a prerequisite of liability in

negligence, is embedded in our law by compulsive

pronouncements

of the highest authority".

And, for my part, I think this is necessarily so if a basic rationale is to be maintained in this area of the law. There is no doubt a reciprocal influence of the elements upon each other when determining that in a particular relationship a cause of action has arisen, the nature of the duty of care having some influence on the conclusion that the relationship is one to which it should attach: and the limits of what is reasonable or unreasonable in the performance of the duty being affected by the relationship to which the duty has been found to attach. But this does not, in my opinion, deny the essential usefulness of the concept of a duty of care as the foundation of actionable negligence. (at p277)

13. Indeed, the identification of the person owing the duty may well produce consequences which are conclusive of liability in some cases: see Twine v. Bean's Express Ltd. (1946) 62 TLR 155, 458 ; Darling Island Stevedoring and Lighterage Co. Ltd. v. Long [1957] HCA 26; (1957) 97 CLR 36, at pp 62, 63, 69, 70 . (at p277)

14. The issue between the parties to the District Court action might be expressed as being whether the injury to that plaintiff was, as between those parties, wholly caused by the negligent act of the respondent: but in so far as contributory negligence was asserted by the respondent, the case involved what were really two subsidiary issues, subsidiary upon an issue whether the respondent was in relation to that injury in breach of his duty to that plaintiff to exercise reasonable care. The subsidiary issues were, one, did that plaintiff contribute to the incident out of which his injury arose by an act of his own done without proper care for his own safety and, two, did some act of that plaintiff in breach of his duty to the respondent to take reasonable care contribute to the occurrence of that incident, for the duties of the users of the road in this respect are mutual. It will be observed that in so expressing the issues I accept the matters of principle expressed in Jackson v. Goldsmith (1) and Edwards v. Joyce (2) and not the views expressed or implied in Marginson v. Blackburn Borough Council (3) and Clyne v. Yardley (4). I would not regard the decision in Nance v. British Columbia Electric Railway Co. Ltd. (5) as inconsistent with the reasoning in Jackson v. Goldsmith (1) or of the cases which followed it. (at p278)

15. So expressing the issues in the District Court action, it will be seen that no issue of breach of the Government's duty to the respondent was involved. Whilst it is no doubt true that rarely will there be any practicality in drawing the distinction in an action for personal injuries between the duty of the principal and that of the agent where the suggested cause of the injury is the act of that agent, it is none the less of importance on occasions, of which I think this is one, to maintain and observe that distinction. Although the one act done without reasonable care "constituted a breach of a duty which was incumbent upon master and servant alike", to use my brother Kitto's expression in Darling Island Stevedoring and Lighterage Co. Ltd. v. Long (6), and although the extent of the respective duties were coincident, the master's responsibility is for the breach of his duty by the act of his servant. (at p278)

16. Thus, though the act in question be the same in each case and, if you will, though I think it not to matter, the evidence establishing it be the same, the issues raised in each case are not, upon a proper analysis, identical. In the District Court what was involved in the defence of contributory negligence was, inter alia, the police officer's personal duty towards the respondent. In this action it is a breach of the Government's duty towards the respondent which is alleged. For lack of the necessary identity in the issues, the appellant's plea in this action, in my opinion, was demurrable. (at p279)

17. However, as it may be thought by some, though I may say I do not, that even though estoppels be odious, this is a very narrow ground on which to decide the matter, and as the argument before this Court ranged over other aspects of the subject, I propose to deal with the appeal from hereon on the footing that the issues in the two cases are identical. (at p279)

18. Clearly in this case the actual parties to the Supreme Court action are not the same as the parties to the District Court action. But it is said that the Government was a privy of the police officer who in its service drove its vehicle on the occasion out of which the claims of the parties arose. The question in this case therefore at this point is simply whether there was relevant privity between the Government and the police officer. (at p279)

19. Of the three classes of privies of blood, of title and of interest, the only one which is submitted and indeed could be submitted to be relevant is that of a privy in interest. But I am unable to conclude that the Government or the Police Department was in this sense a privy of the police officer. The basic requirement of a privy in interest is that the privy must claim under or through the person of whom he is said to be a privy. Here it is quite clear that the Government had no interest in the action between the respondent and the police officer: nor can it be said that the action brought by the police officer was brought by him in any sense on behalf of the Government or that in relation to the defence of contributory negligence the respondent could have been treating the Government as the real "defendant" to that claim. In every respect the action between the respondent and the police officer was personal to each of them, neither being in any sense in relation to the action or any of the issues involved in it, representative of another. Nor can it be said that the Government in any sense claims under or in virtue of the police officer or of any right of his, or that it derives any relevant interest through him. (at p279)

20. But it was said that s. 16 of the Motor Vehicles (Third Party Insurance) Act, 1942-1951 (N.S.W.) brought the Government or the department into privy with the police officer. It may be that but for s. 16 the respondent would have no cause of action against the appellant because the police officer, being a constable, was not in his activity as such the servant or agent of the Government so as to make his act in driving the car, the act of the Government or the department. This is not a question I need pursue as the matter was not argued nor is enough known by inspection of the pleadings to determine whether or not the police driver was at the time functioning as a constable or though a constable merely as a car driver in the employ of the Government or department. In what I have already written I have assumed that the Government or the department, and therefore the appellant, is responsible for the acts of the police driver and that through his employment to drive the car upon the public roads, the Government or the department came under a duty of care towards the respondent as a user of the road. (at p280)

21. However, in any case, s. 16 for the purposes of this action, being an action against the owner of the vehicle, deems the police officer to be the agent of the Government or the department acting within the scope of his authority in relation to the motor vehicle involved in the collision. Section 11 of the Motor Vehicles (Third Party Insurance) Act applies s. 16 in respect of motor vehicles owned by the Government. It is to be noted that these sections, 11 and 16, had no operation at all in the prior action and that they do no more in this action than at most make the Government and the driver joint tortfeasors. But there is, in my opinion, no privity between joint or concurrent tortfeasors simply because of that relationship. It is of course true that judgment recovered against one joint tortfeasor affords a good answer to the other if sued in respect of the same tort. But this, in my opinion, is not because of any issue estoppel or any privity between the tortfeasors: it is because the cause of action being in truth joint and several has merged in the judgment. The case of one joint tortfeasor sued as upon his several liability, who can successfully plead a judgment recovered against the other, or one of the other joint tortfeasors of the same tort, as an answer to a claim against him for that tort, is an instance of estoppel by record based on considerations of public policy in so far as the cause of action in the case of joint tortfeasors is regarded as both joint and several. With respect to the learned authors of Taylor on Evidence, 12th ed., vol. 2, par. 1691, that result cannot, in my opinion, be regarded as depending upon an issue estoppel available to the secondly sued tortfeasor as a privy of the firstly sued tortfeasor. Those authors seem in the same paragraph to acknowledge that the situation to which they call attention results because the cause of action is the same in each case. This is not a requisite in the case of an issue estoppel but is an essential in the case of estoppel by record, or by res judicata, using that expression strictly. They say,

"The rule, however, that a judgment, although unsatisfied,

obtained against one of two joint debtors or joint tortfeasors

is a bar to an action against the other, is confined to cases

where the cause of action is the same";

a sentence incidentally which did not appear in the corresponding paragraph (par. 1503) in an earlier edition of the work. Neither tortfeasor, in my opinion, because he was a joint tortfeasor with the other can be said in any sense or respect to claim under or through the other. I think the learned author of Taylor on Evidence really intended to say no more than that the position of a joint tortfeasor resulting from the application of the doctrine of estoppel by record was akin to that which obtains when a privy can plead an issue estoppel or an estoppel by record because of his privity with the earlier litigant. (at p281)

22. I am of opinion that the issues in the two cases are not identical, the parties are not the same and the appellant, or rather the Government or department he represents, is not nor is any of them a privy of the police officer in relevant respects. (at p281)

23. For these reasons, I would dismiss this appeal. (at p281)

McTIERNAN J. The judgment of the Court of Appeal of the Supreme Court of New South Wales from which this appeal is brought upheld a demurrer by the plaintiff to one of the pleas filed by the defendant in an action in which the plaintiff seeks to recover damages for personal injury suffered in a road accident. The plea in question is a plea of issue estoppel. The circumstances giving rise to this situation followed a collision between a motor vehicle being driven by the plaintiff in the present action (the respondent) and a vehicle described as being "owned by the New South Wales Police Department a Department of the Government of New South Wales and then being driven by an officer of the said Department of the said Government". Following this collision two actions were instituted concurrently. In the District Court at Gundagai one Thrift, a constable of police, who was the driver of the police vehicle, sued, as plaintiff, the driver of the other vehicle, Pigram. In this action Thrift, the plaintiff, was successful and recovered a verdict against Pigram. At the same time an action had been commenced in the Supreme Court of New South Wales in which Pigram, as plaintiff, sought to recover damages for personal injury against two defendants, namely, the driver and the owner of the police vehicle. The action against the driver, Thrift, was subsequently discontinued and the action remained as one against the owner of the vehicle being represented in the action by a nominal defendant appointed under the Claims against the Government and Crown Suits Act, 1912 (N.S.W.). Such nominal defendant, who is the appellant in the present proceedings, sought to plead that an issue estoppel arose in his favour from the determination of the issues involved in the action in the District Court at Gundagai. As the parties in the two relevant actions are not the same it is necessary in order to make applicable the doctrine of estopel that the present action involves one of the parties to the earlier action and a privy of the other. The submission on behalf of the appellant was that a person can be privy to a party where there is a community or privity of interest between them (Carl-Zeiss-Stiftung v. Rayner & Keeler, Ltd. (1967) 1 AC 853, at p 935 ). It is claimed by the appellant that where, in an action for personal injury arising out of the use of a motor car, the legal responsibility of the owner is purely vicarious and dependent upon the doctrine of respondeat superior, the owner and driver have such a community of interest as defendants, or potential defendants, to be entitled to have the benefit of an issue estoppel arising in favour of one or the other. According to the appellant's argument, this proposition is restricted to cases where the so-called privies are in the position of defendants. This proposition is, I think, in conflict with the requirement of mutuality which has been accepted as being essential in cases of estoppel similar to the present case. No substantial reason has been advanced for departing from the well-established principle that no one can take advantage of a judgment unless he would also have been concluded by the judgment had it gone against him. No finding in the action in the District Court at Gundagai, if Thrift had lost it, could have operated as an estoppel against the present appellant in a subsequent proceeding. Antecedent to the application of the rule that estoppels ought to be mutual is, however, the establishment of the necessary relationship or privity between the parties. In my opinion, s. 16 of the Motor Vehicles (Third Party Insurance) Act, 1942 (N.S.W.) does not operate to create sufficient community of interest between the owner (as defined in the Act) of a vehicle and the driver for this purpose. Section 16 provides that the driver of certain insured vehicles is deemed to be the agent of the owner, acting within the scope of his authority, for the purpose of enabling a third party injured by the negligence of the driver to recover against the owner who is obliged to procure insurance against liability for bodily injuries or death caused by the use of the vehicle. It is to be observed that s. 16 does not speak in terms of liability, it speaks in terms of agency (cf. Behrendorff v. Soblusky [1957] HCA 84; (1957) 98 CLR 619, at p 622 ). This section does not necessarily create between such parties a relationship of vicarious liability similar to that existing between two joint tortfeasors. It merely attributes the liability of the statutory or imputed agent to the defined owner for purposes of recovery of damages for injury caused by the driving of certain vehicles by the former. The statutory fiction of agency created is for purposes of the Act only. (at p283)

2. The remaining question involved in this appeal is whether there is any essential issue in the present action which is the same as an issue determined in the earlier action. The plea to the respondent's declaration, which was demurred to, states that the particulars of claim of Thrift, the plaintiff in the earlier action, alleged that Pigram, the defendant, drove his vehicle so negligently carelessly and unskilfully that it collided with the motor vehicle being driven by Thrift whereby Thrift suffered injuries and that the defences by Pigram, the defendant, in that action were, first, that he was not at all material times negligent and did not fail to take reasonable care in his driving and, secondly, that Thrift was guilty of contributory negligence. The plea states, further, that in the earlier action the jury returned a verdict in favour of Thrift, the plaintiff, and there was judgment accordingly. The judgment in the District Court at Gundagai therefore involved findings that the negligence of the defendant, Pigram, had caused the collision and that Thrift was not guilty of the contributory negligence alleged by the defendant in that action. This latter finding is fundamental to the judgment of that Court and the respondent is therefore precluded by the judgment from making any contrary allegation in these proceedings. As contributory negligence may be constituted either by a failure to take reasonable care of oneself or by a breach of a duty of care to the defendant, the finding that the plaintiff in the earlier action, Thrift, was not guilty of contributory negligence involves a finding in his favour on both of these matters. In the converse case of contributory negligence being found either against the plaintiff in the action or some other party then it may be necessary to determine whether such finding was based upon both issues involved in the determination of the question of contributory negligence or one of them. In my opinion the case of Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446 correctly illustrates that the raising of different duties in different actions may be conclusive on the question of identity of issues. As I stated in my judgment on that occasion, it was in that case:

"The plea raises the controversial question of the meaning

of contributory negligence. It is not necessary to attempt an

exhaustive definition. It is sufficient for present purposes to

say that the finding that the appellant" ('appellant' should

read 'respondent') "was not guilty of contributory negligence

is consistent with the hypothesis that the respondent did not

drive his motor car so carelessly as to commit a breach of

his duty to take due care for his own safety. The finding does

not necessarily conclude the question whether the respondent

drove so carelessly as to commit a breach of his duty to take

due and reasonable care for the plaintiff's safety. This is the

question which the appellant raises by the declaration to which

estoppel is pleaded. The judgment of the District Court does

not in my opinion preclude the appellant from putting that

question in controversy in these proceedings"

(1950) 81 CLR, at p 458

.

In the present case the judgment of the District Court concludes, inter alia, that Thrift, the plaintiff in that action, was not guilty of a breach of his duty to pigram, the defendant, to take reasonable care. The issue of the existence and breach of the Government's duty to Pigram, the plaintiff in the present action, was not involved in the District Court action. The want of identity of duties involved in these actions is sufficient in the present context to lead to the conclusion that the relevant issues in these actions are not the same. (at p284)

3. For these reasons I am of the opinion that the appellant's plea in this action was demurrable and that this appeal should be dismissed. (at p284)

KITTO J. I agree with Taylor J. that this appeal should be dismissed for the reasons which he will state. (at p284)

TAYLOR J. This is an appeal from a judgment in demurrer entered in an action in which the respondent sued the appellant, as the nominal defendant, appointed pursuant to the provisions of the Claims against the Government and Crown Suits Act, 1912 (N.S.W.), for damages for personal injuries alleged to have been caused to him by the negligent driving of a motor vehicle. His injuries are alleged to have been caused in a collision between two motor vehicles, one driven by the respondent and the other, owned by the Police Department, by a police constable. The plea to the respondent's declaration, which was demurred to, alleges, in effect, that on the occasion in question the police vehicle was being driven by one Kenneth David Thrift "in the course of his employment and office of police constable in the service of . . . the Government of New South Wales" and that in an action in a District Court he recoverd a verdict for damages against the respondent in respect of personal injuries suffered by him. It is further alleged that the particulars of claim in the said action alleged that the respondent drove his vehicle so negligently carelessly and unskilfully upon a public highway that it collided with the motor vehicle then being driven by Thrift whereby the latter suffered injuries and that the defences by the respondent in that action were, firstly, a denial by the respondent of his alleged negligence and, secondly, that Thrift was guilty of contributory negligence and that upon the hearing of the action the jury returned a verdict in favour of Thrift and there was judgment accordingly. Further, it is alleged that the collision referred to in the particulars of claim "is the same collision referred to in the declaration of the plaintiff herein". (at p285)

2. It is apparent that there is enough in the pleadings to show that in the earlier action it was found that the respondent's negligence had caused the collision and that Thrift was not guilty of contributory negligence and the question is, of course, whether the findings in the earlier case may properly be made the subject of a plea of issue estoppel in the present action. (at p285)

3. Whether or not the relationship between Thrift, a police constable, and the owner of the motor vehicle was that of master and servant or principal and agent the effect of s. 16 of the Motor Vehicles (Third Party Insurance) Act is, for the purposes of the action, to deem him to be the agent of the owner acting within the scope of its authority in relation to the vehicle. The result of this statutory provision is that the owner must be taken to be vicariously responsible for Thrift's acts and the circumstances of the case are such that they must be regarded as joint tortfeasors. This is not always so in the case of principal and agent where one or other, or both of them are sued in tort for circumstances may arise where the acts of the agent may not constitute a breach of any duty owed by him to an injured person or, on the contrary, the acts of the agent for which the principal is said to be vicariously responsible may not constitute a breach of any duty owed by him to an injured plaintiff (see Darling Island Stevedoring and Lighterage Co. Ltd. v. Long [1957] HCA 26; (1957) 97 CLR 36, at pp 62-65 and 66-70 ). That case is an example of the latter type of case and Waugh v. Waugh (1950) 50 SR (NSW) 210 is an example of the former. But here it is clear that the acts complained of constituted both a breach of the agent's duty and of the principal's duty to the respondent. Accordingly originally it was open to the respondent to sue either Thrift or the nominal defendant or both of them. But if he had recovered judgment against one, although the judgment was not satisfied, this fact at common law would have constituted a defence to an action instituted against the other (Brinsmead v. Harrison (1872) LR 7 CP 547 ). The decision in that case was based primarily upon the earlier authority of Brown v. Wootton (1605) Cro Jac 73 (79 ER 62) . Speaking of the earlier case Kelly C.B. said:

"There, as here, a joint wrong had been committed by two

persons. An action was brought against one, and a judgment

obtained, but no satisfaction. A second action was brought

against the other wrongdoer for the same cause, and he pleaded,

as here, the judgment recovered in the first action. The

judgment

of the Court is in these terms: - ' All the Court held the

plea to be good; for, the cause of action being against divers,

for which damages uncertain are recoverable, and the plaintiff

having judgment against one person for damages certain,

that which was uncertain before is reduced in rem judicatam,

and to a certainty'"

The purpose of the rule was further explained by Blackburn J. in Brinsmead v. Harrison (1872) LR 7 CP 547 and his explanation was adopted in George Wimpey & Co. Ltd. v. British Overseas Airways Corporation (1955) AC 169, at p 194 ,

"Is it for the general interest that, having once established

and made certain his right by having obtained a judgment

against one of several joint wrongdoers, a plaintiff should be

allowed to bring a multiplicity of actions in respect of the

same wrong? I apprehend it is not; and that, having

established his right against one, the recovery in that action

is a bar to any further proceedings against the others"

(1872) LR 7 CP, at p 553

.

Likewise, although the liability of joint tortfeasors is said to be joint and several in the sense that a plaintiff may, without objection sue one or more of them, it has consistently been held that the release of one of several joint tortfeasors operates to release all: Duck v. Mayeu (1892) 2 QB 511 , and Apley Estates Co. Ltd. v. De Bernales (1947) 1 Ch 217 . In the former case A. L. Smith L.J. speaking for the Court of Appeal said:

"It is, we think, clear law, that a release granted to one joint

tortfeasor, or to one joint debtor, operates as a discharge of the

other joint tortfeasor, or the other joint debtor, the reason

being that the cause of action, which is one and indivisible,

having been released, all persons otherwise liable thereto are

consequently released. The case of Cocke v. Jennor

[1792] EngR 516; (1614) Hob 66 (80 ER 214)

is

distinct upon the point, and there are many subsequent cases

to the same effect."

This passage was cited by the Court of Appeal with approval in Apley Estates Co. Ltd. v. De Bernales (1947) 1 Ch 217 and as far as I can see has never been questioned. (at p286)

4. The case of Phillips v. Ward [1863] EngR 933; (1863) 2 H & C 717 (159 ER 297) is a different type of case. That case was concerned with an action for debt against joint debtors. The defendants' plea, in effect, alleged that the moneys became due jointly from them and one other person and that before action brought the plaintiff had brought an action against the other person upon the same cause of action and it had resulted in judgment for the defendant. It was held that the plea could not be sustained because it did not appear from it that the action had been dismissed because of a ground of defence which was common to all of the joint debtors; it did not appear on the face of the plea that in the first action the plaintiff had failed because of a defence which was available to all, or because of a defence which was personal to the defendant in that action. But Bramwell B. observed that:

"No doubt, if a person jointly liable with others succeeds

in an action against him alone by pleading a release or payment,

that would afford a good defence to an action against the other

joint debtors - whether pleaded in bar or by way of estoppel

seems unimportant - for a release to one is a release to all,

and payment by one is a discharge of all"

(1863) 2 H & C, at pp 720, 721 (159 ER, at p 298)

.

It might well be argued on the strength of this case and those relating to the effect of the release of one of several joint tortfeasors that if the respondent had sued Thrift and failed a judgment discharging the former from liability would also have operated to discharge the appellant. But the respondent did not sue Thrift; he sought only to avoid liability in the action brought by the latter. Yet he would be concluded, as between himself and Thrift, by the relevant findings of fact in that action. (at p287)

5. Judge Pitt Taylor in his Treatise on the Law of Evidence, 12th ed. (1931), treats the cases to which I have referred and other like cases as instances where rights against privies may be affected by a judgment although all were not parties in the action. At p. 1064 the learned author observed:

"In all the instances of privity above given, the privy has

claimed, or been liable, under or through the original party,

but the same rules of law apply where two or more persons

are subject to a joint or concurrent liability."

"if one be sued alone upon a joint note, debt, or tort, the

judgment against him, even without satisfaction, may be

pleaded and proved in bar of a second suit for the same cause

of action, whether it be brought against the other debtor or

wrongdoer, or against the joint debtors or wrongdoers. The

reason is that, in these cases, the original cause of action

has been changed into matter of record, which is of a higher

nature, and the inferior remedy is thus merged in the higher."

That this was so at common law is clear enough. Further a release of one of two joint tortfeasors would also provide an answer to an action by the plaintiff against the other and, finally, it would seem that judgment for the defendant in favour of one joint tortfeasor may well have provided an answer to a subsequent action by the plaintiff against the other. (at p288)

6. But by s. 5 of the Law Reform (Miscellaneous Provisions) Act, 1946, it is provided that:

"Where damage is suffered by any person as a result of a

tort - judgment recovered against any tortfeasor liable in

respect of that damage shall not be a bar to an action against

any other person who would, if sued, have been liable as a

joint tortfeasor in respect of the same damage."

The effect of this legislative enactment is, of course, to permit successive actions to be brought against individual joint tortfeasors and the result of this must be to destroy the basis upon which it might, perhaps, have been asserted that at common law joint tortfeasors were in the same situation as privies for relevant purposes. That being so, and there being no other ground upon which it can be thought that the appellant and Thrift were privies, I am of the opinion that the plea cannot be sustained and that the appeal should be dismissed. (at p288)

7. In reaching this conclusion I have not overlooked the United States decisions to which we were referred and the long line of authority on the point which exists in that country. But the law in this country has developed along different lines and, if it is to be changed at this stage to accord with the submissions of the appellant, it is a matter for the legislature. (at p288)

WINDEYER J. I agree that this appeal should be dismissed. I need not repeat the facts. I wish only to make a few general observations. (at p288)

2. In the declaration the vehicle which Thrift was driving is said to have been "owned by the New South Wales Police Department". This has apparently been taken to mean that the vehicle was a Government vehicle, the property of the Crown in right of New South Wales, and was kept for use by police officers in the course of their duty. The appellant was appointed as a nominal defendant pursuant to the Claims against the Government and Crown Suits Act, 1912 (N.S.W.). He is thus to be treated as the "owner" of the motor vehicle for the purpose of the Motor Vehicles (Third Party Insurance) Act, 1942 (N.S.W.). Although the declaration did not allege it, the plea states and it was not disputed that Thrift was on the occasion in question driving the car "in the course of his employment and office of police constable in the service of the Government of New South Wales". It was suggested in the argument for the appellant that the action would not lie on the basis of the liability of a master for the acts of his servant having regard to the position of a police officer: see Enever v. The King [1906] HCA 3; (1906) 3 CLR 969 and Attorney-General (N.S.W.) v. Perpetual Trustee Co. (Ltd.) [1955] HCA 9; (1955) AC 457; (1955) 92 CLR 113 . This proposition was, I consider, mistaken. In New South Wales the Crown has in effect been made liable in tort by statute. I can see no ground for saying that, this being so, it is not liable for harm done to a lawful user of the highway by the negligence of a policeman when driving a vehicle in the course of his duty. This, it seems to me, must be so whatever view one takes of the nature of "vicarious" liability for negligence and its relation to the concept of a duty of care. I alluded to some aspects of this in what I wrote in Parker v. The Commonwealth [1965] HCA 12; (1965) 112 CLR 295, at p 300 which I venture to mention to avoid going into the matter here. (I should say that the reference in the Commonwealth Law Reports to Dr. Glanville Williams' article is a misprint : it is in vol. 72, not 79, of the Law Quarterly Review.) The most recent discussion of the topic which I have seen is in the eighth (1967) edition of Winfield on Tort, pp. 654-657, which is helpful and has numerous references to the case law. Moreover, in the present case the respondent relies, as I understood the argument, on s. 16 of the Motor Vehicles (Third Party Insurance) Act. Whatever the way by which it is said that the appellant would be liable for the consequences of negligence on the part of Thrift, the first question which arises is whether the appellant was in a relevant sense a privy of Thrift. Unless that be so the plea of estoppel fails at the outset. If the appellant and Thrift were in the relevant sense privies, the next question would then arise - whether the critical issue in this case is identical with any issue raised and determined in the case in the District Court. In my opinion each of these questions should be answered in the negative. (at p289)

3. As to the first: Section 16 provides that for the purposes of the third-party policy the driver of an insured vehicle is deemed to be the agent of the owner. But this is, I think, a long way from saying that the driver and the owner become for all purposes joint tortfeasors if the driver by his negligence causes damage to a third party. And too I doubt whether it is correct to say that at common law the liability of one tortfeasor, found in an action, means that he and all others who then stand in the position of joint tortfeasors with him are to be regarded as having been his privies bound by the finding in the action. It is true, of course, that the liability at common law of both master and servant for tortious negligence by the latter is not cumulative. The release of one, or acceptance of compensation from one, bars an action against the other. But this seems to me not to solve the problem in the present case. (at p290)

4. The other aspect of the matter is whether the issues in this case are identical with issues determined in the former case. This question does not arise at all unless the present appellant be a privy with Thrift, the defendant in the former case: and I have said already that I do not think this to be so. Nevertheless I should express my view on the identity of the issues assuming in the two cases, against my view, a sufficient identity of the parties. The accident, the event out of which that case and this arose, occurred before the "amendment of the doctrine of contributory negligence" by Pt III of the Law Reform (Miscellaneous Provisions) Act, 1965 (N.S.W.) commenced. There was thus no room in the earlier case, nor is there in this, for any apportionment of responsibility. Contributory negligence on the part of Thrift would, if established, have been a complete defence. The events out of which the case arises occurred when in this area of the law causation battled with blame as the test of liability. The rule of last opportunity held sway. This I think makes it all the more important to examine this case critically to see whether the fact that the jury in the earlier case negatived contributory negligence on the part of Thrift necessarily exonerates the present appellant. I think that it does not. I agree generally with what the Chief Justice has written on this aspect in his judgment which I have had the advantage of reading. On the general question which is in the background of this part of the case I think we should not depart from the reasoning in Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446 ; and I would respectfully agree with what was said by Lawton J. in Randolph v. Tuck (1962) 1 QB 175 . (at p290)

5. It was said that there are considerations of policy, illuminated by judgments in the United States, which tell against our upholding the demurrer to the plea of estoppel in this case. I think the state of the law forces us to do so. I would add that I am not convinced that this result is not consonant with justice. Some remarkable consequences which it was suggested would come of upholding the demurrer in this case would not, I think, arise in practice since the amendment of the law concerning contributory negligence. I realize that many people would agree with Professor Fleming's statement (Law of Torts, 3rd ed. (1965), pp. 694, 695) that -

". . . unfortunately, the courts have taken a narrow view

of the scope of issue-estoppel and, despite facilities for joinder

and third-party procedure, there remain many situations in

which substantially similar issues may have to be re-litigated.

This involves much unnecessary expenditure in time and

money, and warrants serious attention with a view to legislative

reform."

But, as the law stands, I would hesitate to treat this case as an example of a "narrow view", even if there had been any practicable means of bringing the claims and the parties in the present action into the action in which Thrift was plaintiff. Many people no doubt rightly think it is a deplorable feature of the law that, when a collision has occurred between two motor cars and questions of blameworthiness have been litigated and decided, the matter may be later "re-hashed" as it is said in other proceedings. But a collision between motor vehicles is not like a collision between ships at sea, when in proceedings in the Admiralty jurisdiction the measure of the responsibility of each vessel can be finally ascertained and an adjudication in rem follow. An action of negligence arising out of a collision between motor vehicles is a claim against a person for damages, caused by a breach by him of a duty of care, or a breach for which the law imputes responsibility to him. Some modification of the existing rules may deserve the cautious attention of the legislature. But the matter is not, as I see it, one for a court bound to enforce the law as it is. And, without discussing all the authorities which were cited to us by counsel or referred to in the learned judgments delivered in the Supreme Court, I am satisfied that allowing the demurrer will accord with the law as it is. (at p291)