SOLOMON V. THE COMMONWEALTH OF AUSTRALIA

7163/51

J.J Gourley, Gort. Print, Mexb.

IN THE HIGH COURT OF AUSTRALIA

SRIGINAL

REASONS FOR JUDGMENT

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Zupgumwe CORAL)

Aron J.

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THE Ci TH AUS'

JUDGMENT (ORAL) AXIOR J.

HIS HOROUR : This action is brought by the plaintiff to recover damages in respect of losses alleged to have been sustained by him as the result of the negligence of a truck driver, one Galway, who was, it was conceded, employed in that capacity by the Department of the Navy om the occasion which has given rise to these proceedings,

Counsel for the Commonwealth admits that as the result of Galway"s negligence a truck which was being driven by him in Peel Street, Tamworth, left the roadway, mounted the footpath and struck and broke a plate glass display window in front of the plaintiff's shop. It is, however, denied that t the tine of this occurrence Galway

"was acting within the soope of his employment. 'he issues" in this case are, therefore, confined to this question and the question of damages.

On the evidence there is, in my opinion, no doubt that the first of these issues should be resolved in favour ef the plaintiff. The truck which Galway was driving was one of a number of vehicles, the property of the

Commonwealth, which were 2éturning in convoy to Sydney 'from Brisbane, after having proceeded there from Sydney some few days previously. On the return journey the convey, or at least all of the vehicles im the convoy except one, reached

Tamworth about 5.50 p.m. on the 27th July, 1953. 'There the

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ieading hand in charge of the convoy, one Kelly, learnt that one of the convoy vebicles had left the road and overturned some miles back and he decided immediately that he should go bank to the seene of the mishap in order to ascertain exactly what had happened and to render such assistance as might be necessary.

Before he left the other vehicles, which at this stage were parked in a Tamworth street, he instructed the other drivers not to move their vehicles from this spot and to remain thers im case he should send a message for further assistance.