Tooth & Co Ltd v Tillyer

Tooth & Co Ltd v Tillyer - [1956] HCA 49 - HCA 1956 case summary — Zoe

[10]

In support of this mode of interpreting the provision reliance is placed on two lines of authority, one English and the other American. Cases have been decided in England, under the provision forming the source of that now in question, where the workman has been killed in the accident without leaving relatives who might claim under Lord Campbell's Act. He has nevertheless left dependants who have obtained workman's compensation. Even at the time when a cause of action in tort did not survive the death of a person sustaining injury it was held that in these circumstances the employer could recover indemnity under what was finally s. 30 (2) of the Workmen's Compensation Act 1925. Such a case arose in Smith's Dock Co. v. John Readhead & Sons [1] , a case decided by Bray J. in which the dependant was an illegitimate child of the deceased, who left no relatives qualified to claim under Lord Campbell's Act. But the argument seeks to find in this decision more than it decided. All that it established is that if a cause of action once arises in the deceased workman the critical words of the provision are satisfied although the liability soon afterwards comes to an end by his death. Bray J. put his decision on this ground: "Here the injury was so caused under circumstances creating a legal liability in persons other than the employers, namely, in the defendants, and the person to whom they were so liable to pay damages was the workman whose injury was caused by their negligence, and that liability was not the less created because it subsequently came to an end by reason of the man's death" [2] . No case seems to have arisen where the workman died "instantaneously" as the result of the accident and left "dependants" not qualified to claim under Lord Campbell's Act. In R. & W. Paul Ltd. v. Great Eastern Railway Co. [3] his dependants doubtless were qualified to recover under Lord Campbell's Act and that too was presumably the case in Shirvell v. Hackwood Estates Co. Ltd. [4] , in which Greer L.J. [5] approved the decision in Smith's Dock Co. v. John Readhead & Sons [1] , and said that it had been frequently acted upon. But perhaps death can never be so "instantaneous" that for some moment of time a cause of action does not vest in the deceased and thus provide a liability sufficient for the purposes of the provision under discussion.

[17]

But is it right to say that a legal remedy is denied notwithstanding that a liability exists when the common law says that a husband cannot recover from his wife or a wife from her husband in respect of a tort, or when the statute says that, subject to the exception it provides, no husband or wife shall be entitled to sue the other for tort? The decision of Phillips v. Barnet [1] , is strong to show that it is not true of the common law rule. For it is a decision of Blackburn, Lush and Field JJ. that for an act otherwise tortious committed by a husband during the marriage a wife cannot sue him after the marriage has been judicially dissolved. It is said however that the question is now governed by the provision contained in s. 16 (1) of the Married Women's Property Act N.S.W. corresponding with s. 12 of the English Act, and further that when it concludes with the words "but, except as aforesaid, no husband or wife shall be entitled to sue the other for a tort" it impliedly acknowledges that a "tort", with resulting liability of one spouse to the other, may be committed during the marriage, although it is not a wrong against which a married woman's separate property requires protection. Section 16 (1) speaks in terms of remedies, but its purpose is to give a married woman the means, civil and criminal, of protecting her separate estate. Separate estate is a conception of equity not law and there could be no common law liability to her if she were deprived of it or there were some derogation of her enjoyment of it. It seems plain enough that the concluding words were intended to ensure that the old rule otherwise remained. Nothing could be further from the mind of the draftsman than to create between husband and wife a tortious liability unknown to the common law. Even Denning L.J. conceded in Broom v. Morgan [1] that Phillips v. Barnet [2] still stood. His Lordship said: "I ought to say a word about Phillips v. Barnet [2] . That case was decided in 1876 before the Married Women's Property Act 1882. In so far as it was based on the fiction that husband and wife were one, the reasoning is no longer valid; but I would not like to suggest that the case would be decided any differently today. The immunity from suit conferred by s. 12, once it has attached, is not lost by divorce" [3] .

[19]

In Broom v. Morgan [4] Lord Goddard C.J. decided that the liability of a master for harm caused by his servant to a third party included a case where the third party and the servant were husband and wife. His decision was affirmed by the Court of Appeal consisting of Singleton, Denning and Hodson L.JJ. [5] . The same conclusion had been reached in New South Wales: Waugh v. Waugh [6] ; a decision cited and approved in the Court of Appeal by Singleton L.J. [7] . Lord Goddard appears to treat a liability in the master for harm caused by a want of proper care on the part of the servant as consistent with an absence of liability in the servant, at all events if the ground of the want of liability is that the servant and the person harmed are husband and wife. In America the views vary which the courts of the different States have adopted concerning the actual question decided in Broom v. Morgan [8] . But Lord Goddard relied upon the judgment delivered by Cardozo C.J. for the New York Court of Appeals in Schubert v. August Schubert Wagon Co. [9] , deciding that an action against the husband's employer is maintainable by a wife injured by her husband's negligence in the course of his employment. Cardozo C.J. at no point in his reasoning places his judgment on the ground that a liability existed in the husband although by reason of the marriage the remedy was suspended or wanting. The basis of the decision is expressed in a passage in which Cardozo C.J. used the language of "liability" until the last sentence when he speaks in terms of remedy. "A trespass, negligent or wilful, upon the person of a wife, does not cease to be an unlawful act, though the law exempts the husband from liability for the damage. Others may not hide behind the skirts of his immunity. The trespass may be a crime for which even a husband may be punished, but, whether criminal or not, unlawful it remains. As well might one argue that an employer, commanding a husband to commit a battery on a wife, might justify the command by the victim's disability. The employer must answer for the damage, whether there is trespass by direct command, or trespass incidental to the business committed to the servant's keeping. In each case the maxim governs that he who acts through another acts by himself. In all this there is nothing at war with the holding of some cases that the remedy against the husband is denied altogether and not merely suspended during coverture: Phillips v. Barnet [1] . Unlawful the act remains, however shorn of a remedy: Bennett v. Bennett [2] " [3] . (In Bennett v. Bennett [2] it was decided that no more than procedure was involved in the rule of the common law that the husband must be joined in an action by a married woman against a stranger.)

[36]

The allegations in the declaration were capable of constituting a good cause of action under s. 64 (b), if it were not the fact that the defendant and the "worker" were husband and wife. This fact was pleaded, no doubt, to invite a demurrer. It may be assumed that if the fact had not been alleged in the declaration it would have formed the substance of a plea. That the fact was alleged in the declaration was the basis of the demurrer. The plaintiff was not entitled to be indemnified under s. 64 (b) by the defendant unless he was liable to pay damages in respect of the "injury". Looking at s. 64, the defendant was so liable if the injury was caused under circumstances creating a legal liability in him to pay damages in respect of it. The circumstances relied upon by the plaintiff were pleaded as circumstances amounting to negligence on the part of the defendant. Under the law of New South Wales, a wife cannot bring any action in tort against her husband except an action for the security and protection of her separate property: Married Women's Property Act 1901, s. 16. The "injury" pleaded in the declaration was within the scope of the Workers' Compensation Act - a personal injury. An action of negligence in which a wife claims damages for a personal injury is clearly not an action for the security and protection of her separate property. Therefore, the circumstances under which the declaration alleged that the "injury" was caused to the "worker" did not give rise to an action for damages. For that reason the circumstances did not create a legal liability in the defendant to pay damages. It follows an action by the plaintiff does not lie against the defendant under s. 64 (b). It was argued for the plaintiff that s. 64 postulates a legal liability to pay damages without any cause of action arising with it. I think that it was precisely because no cause of action arose that the defendant was never under a legal liability to pay damages in respect of the injury. This is demonstrated by sub-pars. (a) and (c). The former assumes that the worker can sue for damages for the injury and the latter assumes that he has obtained a judgment for damages. The result of these considerations is that the allegations in the declaration did not show that the defendant was liable, within the meaning of s. 64 (b) to pay damages in respect of the "injury". Indeed, they showed the contrary, because it appeared thereby that the defendant and the worker were husband and wife. As I have already said, I would refuse this application.

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