Scott v Davis

High Court of Australia|2000-10-05|Before: Gummow J, Jordan CJ, Gleeson CJ, Callinan JJ

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

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

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

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

Doyle CJ and Nyland J; Millhouse J dissented. ↑

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Houldsworth v City of Glasgow Bank (1880) 5 App Cas 317. ↑

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Savignac v Roome (1794) 6 TR 125 [101 ER 470]. ↑

Turner v Hawkins (1796) 1 Bos & Pul 472 [126 ER 1016]. See also Brucker v Fromont (1796) 6 TR 659 [101 ER 758]. ↑

Sharrod v The London and North Western Railway Company (1849) 4 Ex 580 at 585-586 [154 ER 1345 at 1347-1348]. ↑

Gow, "The Nature of the Liability of an Employer", (1958) 32 Australian Law Journal 183. ↑

Seymour v Greenwood (1861) 6 H & N 359 [158 ER 148]; (1861) 7 H & N 355 [158 ER 511]. ↑

See eg Baker, An Introduction to English Legal History, 3rd ed (1990) at 80. ↑

Gow, "The Nature of the Liability of an Employer", (1958) 32 Australian Law Journal 183 at 183. ↑

Rand v Bomac Construction Ltd (1988) 55 DLR (4th) 467 (where the claim failed on the facts). ↑

cf the formulation in Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 at 320 (a decision prior to Soblusky) where Sir Frederick Jordan said:

"[I]n order to fix with vicarious liability a person other than the negligent driver himself, it is necessary to show that the driver was at the time an agent of his, acting for him and with his authority in some matter in respect of which he had the right to direct and control his course of action." ↑

(1931) 46 CLR 41; cf Samson v Aitchison [1912] AC 844. ↑

The Nature of the Judicial Process, (1921) at 29. ↑

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 at 516 per Lord Devlin. ↑

(1832) 1 C & M 29 [149 ER 301]; (1832) 2 LJ Ex 25. ↑

(1837) 2 M & W 650 [150 ER 917]; (1837) 6 LJ Ex 193. ↑

Morris v The English, Scottish and Australian Bank Ltd (1957) 97 CLR 624 at 629‑630. See also Viro v The Queen (1978) 141 CLR 88 at 118-119, 137, 174. ↑

Handbook on the Law of Torts, 3rd ed (1964) at 494. See now Prosser and Keeton on The Law of Torts, 5th ed (1984) at 524. ↑

Trindade and Cane, The Law of Torts in Australia, 3rd ed (1999) at 733‑734. ↑

An unauthorised driver may be a thief: Marsh v Absolum [1940] NZLR 448; or an authorised driver who, at the time of the accident, is exceeding their authority. ↑

As to cars owned by the Commonwealth see Commonwealth Motor Vehicles (Liability) Act 1959, s 5. ↑

For example Emjay Motors Pty Ltd v Armstrong (1995) 22 MVR 193. ↑

For an example of the latter see Soblusky v Egan (1960) 103 CLR 215 [and Behrendorff v Soblusky (1957) 98 CLR 619. These two appeals arose out of actions brought in respect of the one motor vehicle collision. In Egan, Egan sued Lewis (the driver), Soblusky and Behrendorff for his personal injuries. The trial judge found that the accident was due to the negligence of Lewis, that Behrendorff as "statutory owner" was liable for the negligence of Lewis as statutory "agent", and that, at common law, Lewis was the "agent" for Soblusky who was in "control" of the car so that Soblusky was liable to Egan for his negligence. In Behrendorff, Soblusky sued Behrendorff and Lewis for his injuries and property damage. This Court rejected the submission that Behrendorff could not be liable as "statutory owner" because concurrently Lewis may have been Behrendorff's "agent" at common law under the authority of Samson v Aitchison [1912] AC 844]. ↑

(1969) 71 SR (NSW) 226 at 229. See also the discussion of principle by Hart J in Kirth v Tyrrell [1971] Qd R 453 at 459‑461 and by Fox J in Milkovits v Federal Capital Press of Australia Pty Ltd (1972) 20 FLR 311 at 314‑315. ↑

Pyrenees Shire Council v Day (1998) 192 CLR 330 at 387 [163]. ↑

Prosser and Keeton on the Law of Torts, 5th ed (1984) at 523‑524 (footnotes omitted). ↑

(1999) 198 CLR 180 at 195 [15], 200-202 [34]-[42], 226 [120], 259‑260 [216]-[217], 325‑326 [405]. ↑

(1998) 192 CLR 330 at 347‑348 [24]-[27], 388‑391 [166]-[173], 427‑428 [254]-[256]. ↑

(1997) 188 CLR 159 at 198‑199, 234. See also the judgment of Dawson J (with whom Toohey J agreed) at 186. ↑

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24, 35, 49‑50. ↑

The action by Travis (by his father as next friend) was instituted in the District Court. Those by his parents were commenced in the Magistrates' Court. They appear to have been transferred to the District Court. The three actions were heard together and the one set of orders was made by the District Court. ↑

The result was the attraction of federal jurisdiction under s 76(ii) and s 77(iii) of the Constitution, with which the District Court was invested by s 39(2) of the Judiciary Act 1903 (Cth): Felton v Mulligan (1971) 124 CLR 367 at 374. ↑

Both ss 20A and 29 are found in Pt III of the Act, which is headed "Regulation of civil aviation". Section 20A is found in Div 1 of this Part, entitled "General regulatory provisions". It reads:

"(1) No person may operate an aircraft in a careless or reckless manner so as to endanger the life of another person.

(2) No person may operate an aircraft in a careless or reckless manner so as to endanger the person or property of another person."

Section 29 is the first section in Div 3, headed "General offences in relation to aircraft". Sub-section 29(1) relevantly reads:

"(1) No owner, operator, hirer (not being the Crown) or pilot of an aircraft shall operate the aircraft or permit the aircraft to be operated so as to:

(b) fly or be operated in contravention of a provision of this Part or a direction given, or condition imposed, under such a provision."

Sub-sections 29(1A), (1B) and (2) provide the penalties for contravention of sub‑s 29(1). ↑

[1973] AC 127 at 130. It had been cited to the Court of Appeal Launchbury v Morgans [1971] 2 QB 245 at 248. ↑

16th ed (1989) at s3-50. This is a section entitled "Loan of Chattel" in the chapter dealing with vicarious liability. The paragraph is retained, and renumbered as s5‑66, in the 17th edition of this work published in 1995. ↑

"Thelma" (Owners) v University College School [1953] 2 Lloyd's Rep 613; Pawlak v Doucette [1985] 2 WWR 588 at 597‑601. ↑

(1803) 3 East 593 at 602‑603 [102 ER 724 at 728]. ↑

(1803) 3 East 593 at 602‑603 [102 ER 724 at 728]. ↑

(1800) 1 East 106 at 107‑109 [102 ER 43 at 44]. ↑

Michael v Alestree (1676) 2 Lev 172 [83 ER 504]; rep sub nom Michell v Allestry (1676) 3 Keb 650 [84 ER 932] and Mitchil v Alestree (1676) 1 Vent 295 [86 ER 190]. ↑

Ogle v Barnes (1799) 8 TR 188 at 192 [101 ER 1338 at 1340]. ↑

(1795) 2 H Bl 441 at 443 [126 ER 639 at 641]. ↑

(1832) 1 C & M 29 [149 ER 301]. See also Gregory v Piper (1829) 9 B & C 591 [109 ER 220]; Doolan v Hill (1879) 5 VLR(L) 290; Holmes, "Agency", (1891) 4 Harvard Law Review 345 at 348. ↑

The Koursk [1924] P 140 at 155; Brooke v Bool [1928] 2 KB 578 at 585; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 580‑581, 600, 602. ↑

(1849) 4 Ex 580 at 585‑586 [154 ER 1345 at 1347‑1348]. ↑

(1795) 2 H Bl 441 at 442 [126 ER 639 at 640]. ↑

(1832) 1 C & M 29 at 30 [149 ER 301 at 301]. ↑

(1832) 2 LJ Ex 25 (the reference to 3 LJ Ex in the headnote to the English Reports is incorrect). ↑

(1833) 10 Bing 112 [131 ER 848]; (1833) 2 LJ CP 190. See Prichard, "Trespass, Case and the Rule in Williams v Holland", (1964) Cambridge Law Journal 234. ↑

"Section Seventeen of the Statute of Frauds", (1885) 1 Law Quarterly Review 1 at 1. Parke B had not been alone. In 1823 Graham B had said of the distinctions between trespass and case that he was "fully convinced of [the] utility" of "these nice distinctions": Lloyd v Needham (1823) 11 Price 608 at 620 [147 ER 579 at 583]. ↑

Dalston v Janson (1696) 1 Salkeld 10 [91 ER 9 at 10]; Haward v Bankes (1760) 2 Burr 1113 [97 ER 740]. ↑

(1803) 3 East 593 at 600-601 [102 ER 724 at 727]. See also Winfield and Goodhart, "Trespass and Negligence", (1933) 49 Law Quarterly Review 359 at 365‑366. ↑

(1794) 6 TR 125 at 129-130 [101 ER 470 at 472-473]. This was provided by the statute 22 & 23 Car II c 9 (1670); it was repealed in 1863 by the Statute Law Revision Act (26 & 27 Vict c 125). ↑

See, eg, Chitty's Treatise on Pleading and Parties to Actions, 7th ed (1844), vol 1 at 220-221. ↑

The contrary view, expressed in Atiyah, Vicarious Liability in the Law of Torts, (1967) at 126 is not well founded. Atiyah also cited Chandler v Broughton, Wheatley v Patrick and M'Laughlin v Pryor for the proposition that a plaintiff might lose his action if he sued in case a master who had temporarily taken the reins from his servant. As noted earlier, the action in Chandler v Broughton was in trespass, while there was no master-servant relationship in Wheatley v Patrick. The plaintiff's action in M'Laughlin v Pryor, too, was in trespass. ↑

Pleading, (1915) at 27. See also Young v Queensland Trustees Ltd (1956) 99 CLR 560 at 563‑565. ↑

Cornish and Clark, Law and Society in England 1750‑1950, (1989) at 41. ↑

Fifoot, English Law and its Background, (1932) at 154. We have it on the authority of Sir Frank Kitto, writing extrajudicially (Meagher, Gummow and Lehane, Equity Doctrines and Remedies, "Foreword", (1975) at vii), that the Hilary Term Rules established a system "that shines in the third edition of Bullen and Leake as a refined and polished instrument for arriving at the issues between parties". ↑

(1839) 5 Bing (NC) 678 at 684-686 [132 ER 1261 at 1264]. ↑

Cornish and Clark, Law and Society in England 1750‑1950, (1989) at 41. ↑

Chitty's Treatise on Pleading and Parties to Actions, 7th ed (1844), vol 1 at 528. See also Pleading, (1915) at 28‑29; Rath, Principles and Precedents of Pleading, (1961) at ss86‑89. Examples of pleas of "not guilty" which did not put in issue a fact the defendant needed to prove to make out his defence are: Hart v Crowley (1840) 12 Ad & E 378 [113 ER 856]; Hall v Fearnley (1842) 3 QB 919 [114 ER 761]; Torrence v Gibbins (1843) 5 QB 297 [114 ER 1261]; Dunford v Trattles (1844) 12 M & W 529 [152 ER 1308]; (1844) 13 LJ Ex 124; Grew v Hill (1849) 18 LJ Ex 317; Mitchell v Crassweller (1853) 22 LJ CP 100; Salter v Walker (1869) 21 LT 360. See also White v Teal (1840) 12 Ad & E 106 [113 ER 751], where evidence tendered by the defendant was inadmissible as contrary to an admission he had made by pleading not guilty to an action in trover; and Emery v Clark (1839) 2 M & Rob 260 [174 ER 282], where the plaintiff properly closed his case without having given evidence in respect of a matter admitted by the defendant's plea of "not guilty". ↑

An example is the declaration set out and discussed by Tindal CJ in Taverner v Little (1839) 5 Bing (NC) 678 at 685‑686 [132 ER 1261 at 1264] and the declaration in Wheatley v Patrick (1837) 6 LJ Ex 193 at 193, which is set out later in these reasons. ↑

Rath, Principles and Precedents of Pleading, (1961) at s36. See also Mummery v Paul (1844) 14 LJ CP 9. ↑

See, for example, the cases in fn 279. Similar problems were encountered in actions other than trespass and case: see, eg, Watkins v Lee (1839) 5 M & W 270 [151 ER 115] (malicious arrest); White v Teal (1840) 12 Ad & E 106 [113 ER 751] (trover). ↑

(1837) 2 M & W 650 [150 ER 917]; (1837) 6 LJ Ex 193. ↑

(1837) 2 M & W 650 at 650 [150 ER 917 at 917]; (1837) 6 LJ Ex 193 at 194. ↑

Chitty's Treatise on Pleading and Parties to Actions, 7th ed (1844), vol 1 at 528. Similarly, it was said in Bullen and Leake, Precedents of Pleadings in Personal Actions in The Superior Courts of Common Law, 3rd ed (1868) at 753:

"In actions for negligent driving, where the declaration states by way of inducement that the defendant was possessed of a carriage, or that a carriage was under his management or that of his servant at the time of the injury, the defendant cannot dispute these facts under the plea of not guilty." ↑

(1837) 2 M & W 650 at 652 [150 ER 917 at 918]. ↑

(1837) 2 M & W 650 at 652 [150 ER 917 at 918]. ↑

(1837) 2 M & W 650 at 652 [150 ER 917 at 918]. ↑

(1837) 2 M & W 650 at 652 [150 ER 917 at 918]. ↑

Brooke-Smith, "Liability for the Negligence of Another - Servant or Agent?", (1954) 70 Law Quarterly Review 253 at 258. See also to the same effect the treatment of Wheatley v Patrick by North and Cleary JJ in Union Steam Ship Company of New Zealand Limited v Colville [1960] NZLR 100 at 107. ↑

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

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

(1835) 7 Car & P 66 at 66 [173 ER 30 at 30] (emphasis added). ↑

(1835) 7 Car & P 66 at 66-67 [173 ER 30 at 30]. ↑

(1849) 4 Ex 580 at 586 [154 ER 1345 at 1348]. ↑

The Law of Torts, (1907) at 80 (footnote omitted). ↑

(1837) 2 M & W 650 at 651 [150 ER 917 at 918]. ↑

(1837) 2 M & W 650 at 651 [150 ER 917 at 918]. ↑

Contrary to the Motor Car Act 1903 (UK), s 1. ↑

It should be noted that in the then current edition of Pollock, The Law of Torts, 8th ed (1908), Wheatley v Patrick was not mentioned. ↑

Samson v Aitchison (1911) 30 NZLR 838 at 842. ↑

The last edition edited by Sir John Salmond himself was the 6th edition, published in 1924. ↑

For example, The Law of Torts, 9th ed (1912) at 82‑83. ↑

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 43; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 577; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 366. ↑

A verdict for the defendant in similar circumstances was upheld in Milligan v Wedge (1840) 12 Ad & E 737 [113 ER 993]. ↑

Winfield, A Text-Book of the Law of Tort, (1937) at 129. ↑

See also Hill, "Vicarious Liability of the Car-Owner", (1954) 1 Sydney Law Review 242 at 242‑243. ↑

(1941) 41 SR (NSW) 317 at 319. See also, in New Zealand, Union Steam Ship Company of New Zealand Limited v Colville [1960] NZLR 100. ↑

See Commissioner of Stamp Duties of New South Wales v Pearse [1954] AC 91 at 112; Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 349; but cf Dickson v McWhinnie (1958) 58 SR (NSW) 179 at 197. ↑

Parry v Roberts (1835) 3 Ad & E 118 [111 ER 358], 5 Neville & Manning 669; Martin v Pont [1993] 3 NZLR 25. These cases illustrate, as the New Zealand Court of Appeal pointed out in the second of them ([1993] 3 NZLR 25 at 30), that unjust enrichment is not a prerequisite of the action for money had and received. ↑

T Mahesan S/O Thambiah v Malaysia Government Officers' Co-operative Housing Society Ltd [1979] AC 374 at 380. ↑

See United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1 at 13‑14. ↑

Warman International Ltd v Dwyer (1995) 182 CLR 544 at 556‑562. ↑

Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd (1958) 100 CLR 342 at 350; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 67‑68, 96‑97, 107‑110. ↑

In re Hallett's Estate. Knatchbull v Hallett (1879) 13 Ch D 696 at 709; Stephens Travel Service International Pty Ltd v Qantas Airways Ltd (1988) 13 NSWLR 331 at 340‑341. ↑

"Agency", (1891) 4 Harvard Law Review 345 at 364. ↑

"Responsibility for Tortious Acts: Its History", (1894) 7 Harvard Law Review 315 (Pt 1), 383 (Pt 2). ↑

See Kooragang Investments Pty Ltd v Richardson & Wrench Ltd [1982] AC 462 at 471‑472. ↑

Dr Stallybrass as editor, Salmond, The Law of Tort, 10th ed (1945) at 83 (fn (y)). ↑

For examples, see Barwick v English Joint Stock Bank (1867) LR 2 Ex 259; Lloyd v Grace, Smith & Co [1912] AC 716. ↑

See Bowstead and Reynolds on Agency, 16th ed (1996), ss8‑174-8-180. ↑

[1953] 1 WLR 409 at 410; [1953] 1 All ER 711 at 712. ↑

[1953] 1 WLR 1120 at 1122-1123; [1953] 2 All ER 753 at 754‑755. ↑

[1973] AC 127 at 135; cf Lord Wilberforce's remarks shortly thereafter in Heatons Transport (St Helens) Ltd v Transport and General Workers' Union [1973] AC 15 at 99‑100. ↑

[1973] AC 127 at 140. The phrase, which is taken from Coke on Littleton, 17th ed (1817), vol 2, s258a, means "[h]e who does an act through another is deemed in law to do it himself" (Broom, A Selection of Legal Maxims, 10th ed (1939) at 558). But it was used by Coke there to express the proposition that "where the servant doth all that which he is commanded, and which his master ought to doe, there it is as sufficient as if his master did it himselfe". ↑

[1973] AC 127 at 149. See also the judgment of Brooke LJ in Candler v Thomas (t/a London Leisure Lines) [1998] RTR 214 at 217-218. ↑

Stoljar, The Law of Agency, (1961) at 10. See also Keeler, "Driving Agents: to vicarious liability for (some) family and friendly assistance?", (2000) 8 Torts Law Journal 41 at 72. ↑

An outline of the Law of Agency, 2nd ed (1986) at 10 (footnotes omitted). ↑

See eg Morrison v Joel (1834) 6 C & P 501 [172 ER 1338]. ↑

(1837) 2 M & W 650 at 652 [150 ER 917 at 918]. ↑

(1837) 2 M & W 650 at 652 [150 ER 917 at 198]. ↑

Bowstead and Reynolds on Agency, 16th ed (1996) at s8‑182. ↑

(1994) 179 CLR 520 at 550‑552. It also was accepted by the Supreme Court of Canada in Lewis v British Columbia [1997] 3 SCR 1145 at 1165‑1166, 1174‑1175. ↑

An example may be the line of cases applied in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 which holds that a port authority is not vicariously liable for the negligence of qualified and skilled pilots engaged by it. ↑

cf Lewis v British Columbia [1997] 3 SCR 1145 at 1167‑1168. ↑

The phrase used by Dawson J in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 345. ↑

A Text-Book of The Law of Tort, (1937) at 129. ↑

See Sykes, "The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines", (1988) 101 Harvard Law Review 563 at 569‑570. ↑

Stone, Legal System and Lawyers' Reasonings, (1964) at 241‑246. ↑

Keeler, "Driving agents: to vicarious liability for (some) family and friendly assistance?", (2000) 8 Torts Law Journal 41 at 87. See now the amendments made by the Civil Aviation Amendment Act 2000 (Cth) with respect to the criteria for the grant of air operator's certificates to non-commercial operators. ↑

Sykes, "The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines", (1988) 101 Harvard Law Review 563 at 564, 594‑597. See also Posner, Economic Analysis of Law, 5th ed (1998) at 294‑295; Cane, Tort Law and Economic Interests, 2nd ed (1996) at 470‑473; and cf Campomar Sociedad, Limitada v Nike International (2000) 74 ALJR 573 at 582 [45]; 169 ALR 677 at 689‑690. ↑

Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 571‑572. See also Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 at 638, 663, 683. ↑

Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 572. ↑

(1986) 160 CLR 626 at 640, 643‑644, 660‑661, 675, 683. ↑

Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 at 297‑299. ↑

Fifoot, English Law and its Background, (1932) at 155. ↑

Pyrenees Shire Council v Day (1998) 192 CLR 330 at 385‑388 [157]-[164]. ↑

Hixon v Sherwin-Williams Co 671 F 2d 1005 at 1009 (1982). His Honour made the point, repeated in his extrajudicial writing, that the denial of liability in an employer for the torts of an independent contractor is consistent with interests of economic efficiency: see Posner, Economic Analysis of Law, 5th ed (1998) at 205. ↑

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 593. ↑

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 473; Agar v Hyde [2000] HCA 41 at [64]. ↑

(1999) 197 CLR 1. See also, with respect to trespass to the person, the observations of Windeyer J in McHale v Watson (1964) 111 CLR 384 at 387‑388; affd (1966) 115 CLR 199. ↑

The phrase used by Dixon J in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co‑operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 50. ↑

Chandler v Broughton (1832) 1 C & M 29 [149 ER 301]; Booth v Mister (1835) 7 Car & P 66 [173 ER 30]; Wheatley v Patrick (1837) 2 M & W 650 [150 ER 917]; M'Laughlin v Pryor (1842) 4 Man & G 48 [134 ER 21]. But see Quarman v Burnett (1840) 6 M & W 499 [151 ER 509]. ↑

In Australia, Soblusky v Egan (1960) 103 CLR 215; Mortess v Fry [1928] SASR 60; Christmas v Nicol Bros Pty Ltd (1941) 41 SR(NSW) 317. In England, Reichardt v Shard (1913) 30 TLR 81; (1914) 31 TLR 24; Pratt v Patrick [1924] 1 KB 488; Hewitt v Bonvin [1940] 1 KB 188; Ormrod v Crosville Motor Services Ltd [1953] 1 WLR 1120; [1953] 2 All ER 753. In the Privy Council, Samson v Aitchison [1912] AC 844; Trust Co Ltd v de Silva [1956] 1 WLR 376; Launchbury v Morgans [1973] AC 127. In New Zealand, Manawatu County v Rowe [1956] NZLR 78; Mako v Land [1956] NZLR 624. ↑

Launchbury v Morgans [1971] 2 QB 245 at 260 per Edmund Davies LJ; Brooke v Bool [1928] 2 KB 578; Milligan v Wedge (1840) 12 Ad & E 737 [113 ER 993]. ↑

See, for example, Savignac v Roome (1794) 6 TR 125 [101 ER 470] where on motion in arrest of judgment, the plaintiff was denied judgment "as it appeared that he had brought an action on the case for that which in law was a trespass" (M'Manus v Crickett (1800) 1 East 106 at 109 [102 ER 43 at 44]). ↑

Reynolds v Clarke (1725) 2 Ld Raym 1399 at 1402 [92 ER 410 at 413]. ↑

Not only did the form of judgment differ between the two forms of action, there were differences in costs and in the scope of the general issue. See Prichard, "Trespass, Case and the Rule in Williams v Holland", (1964) Cambridge Law Journal 234 at 240, n 37. ↑

cf Atiyah, Vicarious Liability in the Law of Torts, (1967) at 126. ↑

(1835) 7 Car & P 66 [173 ER 30]. (Emphasis added) ↑

(1837) 2 M & W 650 [150 ER 917]. (Emphasis added) ↑

(1837) 2 M & W 650 at 652 [150 ER 917 at 918]. ↑

(1837) 2 M & W 650 at 652 [150 ER 917 at 918]. ↑

Story, Commentaries on the Law of Agency, (1839) at s 452. ↑

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