7163/51 J.J Gourley, Gort. Print, Mexb. IN THE HIGH COURT OF AUSTRALIA SRIGINAL REASONS FOR JUDGMENT Ww Zupgumwe CORAL) Aron J. ve 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 -~2 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. He then set out for the seene of the accident and having recovered the stray vehicle, he brought it to Tamworth arviving shortly before 6 p.m. Upon his return none of the convoy vebicles were to be found where they had been parked previously, Thereupon he instituted inquiries and almost immediately learnt of the further accident which had ocourred, apparently, just about or shortly before the time at which he returned to Tamworth. He thereupon set out for this accident and, he says, it was 40 past 6 when he arrived there. When he arrived at the scone of the accident Galway's truck was stationary in the vieinity of the plaintif?'s shop. The front of it was adjacent to the shop front and one large pane of plateglass had been broken. 'There was broken glass on the footpath and in the window space among the various goods, some new and some second-hand, which were there displayed. There was evidence that the truck had been seen travelling at a fast rate of speed down Poel Street in the direction of Tattersall's Hotel and that, in the vicinity of the plaintiff's shop, it swerved violently to the left and struck the window already mentioned. Police officers who saw and spoke to Galway after the accident gave evidence to the effect that he was then some~ ~3 = what under the influence of. liquor. In these circumstances the defendant contends that Galway, in driving his truck along Peel Street, was not acting within the scope of his employment. It was reasonable to infer, it was said, that Galway had left the vicinity of the parked yehioles for the purpese of consuming liquor and that he had, in further disobedience of Kelly's orders, moved bis wehicle before Kelly's return to Tamworth. There is, however, no evidence that his, or any other veliicle, had been moved until shertly before Kelly's return. I accept Kelly's evidence unhesitatingly, but it by no means follows that disobedience to his orders on that occasion operated to relieve the defendant from liability in the events which followed, for as Iord Dunedin said in Elum. Cobden Flour wilies Ltd. (4944 4.¢. 62) "There are prohibitions which limit the sphere of employment and prohibitions which only deal with conduct within the sphere ~ecof employment". I refer also.to Canadian Pacific Ratlways. Xe Tookhart (1942 A.C. $91). In the circumstancesof this case I am satisfied that Kelly's orders constituted no more than a prohibition of the latter type. This is not a case where a servant has without authority and entirely for his own purposes used his master's vehicle at the end of the day's work; in this case what took place occurred im the course of a long journey, during which it was necessary that the employee concerned should both . eat and sleep and yet have and keep his vehicle at all times under his supervision. it was not suggested that the use of the vehicle for the purpose ef proceeding to a place of accommodation was outside the scope of the employment; on the contrary, the evidence is that this was usual and, indeed, the journey to a place of accommodation was, in normal ciroumstances, part of the very journey which the drivers were instructed to make. ~4 = In the present case there is no direct evidence that Galway was, at the time of the accident, proceeding to @ piace of accommodation. 'there is, however, evidence that, although arrangements for accommodation were usually made by the officer im charge of the convoy, on this occasion - they were made by one of his subordinates and that the route along which Galway was proceeding at the time of his acoident was the direct route from the place where the vehicles had been parked earlier te the hotel where eccommedation was reserved. There is no evidence as to the time when this was done but Kelly himself was told of it at the seene of the accident some little time after 6 o'clock and, in fact, those engaged im driving convoy vehicles were accommodated at that hotel on that night. In these eiveunstances, there is nothing to suggest that Galway was at the time of the accident using the vehicle for his om purpeses or that he was, at that time, engaged on a frolic of his own. Whether or not he had been engaged on such a frolic at an earlier stage is of little consequence for, notwithstanding his disobedience to Kelly's orders, the evidence is entirely consistent with a use of the vehicle in the course of his employment, that is, for the purpose of procedding directly to the place where he and the other drivers were to be accommodated for the night. It is, of colirse, quite immaterial whether Galway was or was not under the influence of liquor at the time of the avoident, if he was then driving the vehicle within the scope of his employment. I am satisfied that this was so. Upon the evidence he was, I think, proceeding to Tattersall's Hotel by a direct route for the purpose of parking his yebicle for the night and there obtaining accommodation with the other convoy drivers, and there is mo evidence that there had, previously, been such a departure from the scope of his employment as to require ~ or even justify ~ a finding that driving to Tattersall's Hotel for this purpose was not a part of the very duties for which he was employed. In these circumstances, the defendant's submission on this point felis. The plaintiff's damage is said to fall under a tumber of heads. In the first place a claim is made for dislecation of his business and loss of profits. By his statement of claim, loss of profits at the rate of £25 per week for eighteen months was claimed and this loss was said to be "still continuing". i am satisfied this claim was grossly exaggerated. The record of the plaintiff's takings, such as it is, which was tendered and bis son's evidence as to the percentage of profit on sales in the business, show that no such loss ocourred. Indeed, for the four weeks before the accident ~ and that is the only prior period in respect of which evidence of sales was given + the plaintiff's profite averaged no more than £21 weekly. Upon the evidence produced I am satisfied that the sum of £50 will amply compensate the plaintiff for less under this head and for work done by the plaintiff himself in and about providing temporary safeguards after the window had been broken. To this amount should be added £10, representing the amount paid to a carpenter in erecting a temporary barricade and for the cost of material used in this structure, less their residual value to the plaintiff. The two remaining heads of damage are the expense of permanent repairs te the window front, which have not yet been undertaken, and for damage to display fittings and the stook which was displayed in the window. The plaintiff's son, who is also the plaintiff*s manager, gave evidences that a list produced by him and which purported te assess the loss under the latter heading at £159, was a txue estimate. There are, however, good xeasons for doubting whether this is so. No opportunity was afforded -~-6- to the defendant at any stage to make an assessment of this damage and I do mot regard the evidence of the plaintiff's son on this point as wholly satisfactory. Indeed, I am quite sure that, a misfortune having occurred, no opportunity has been lost to make the best of it. in my view an award ' of £100 on this head of damage will do more than justice to the plaintiff's claim. 'She matter of permanent repairs to the window front is a more substantial matter, but before referring to the evidence concerning the cost of effecting these I should mention that the shop front consists of two front windows, each about 14*°6" x 6'6" and one threshold window. It was one of the former which was broken by the impact of the defendant*s vehicle. But some years before it had been cracked to a substantial extent in ome corner and it was maintained in position by a length of timber secured to the inside of the window. The threshold window also had been broken and this portion of the shop front had been covered by wooden three~ply. The evidence of two witnesses as to the cost of repairing the shop front varied greatly. One witness gave as his estimate £550, another £80. But the difference between these witnesses was accounted for by the following eiroumstance. The former said that the metal fittings required to hold the destroyed window in position had been damaged to such an extent that they could no longer be used and that, since they were of a type which could not now be replaced, it was necessary, im order to maintain uniformity im the shop front, that all the metal fittings should be replaced. Fox this purpose it was proposed to remove the existing windows and fragments and to replace the existing fittings with stainless steel. The result would be, it was said, an entixely new display window. The other witness, an architect, agreed that af such a course was necessary the sum of £350 was not an -7F- unreasonable estimate, but he did not think that course was necessary. He believed that matching fittings were procurable and that all that was necessary was the replacement of the destroyed window and a limited part of the necessary fittings. The last witness, however, seemed by no means sure that 'matching fittings were available and I am inclined to think that the plaintiff's claim should be adjusted on the former basis. But this does not mean that the plaintiff is entitied to recovex the sum of £550 under thie heading. The shop front was already substantially damaged before the accident, it had been in use for twenty years or more and the result of the work proposed will be to give the plaintiff entirely new work of considerably more value. In the circumstances, I think the plaintiff would be amply compensated under this heading by an award of £250. Im all, therefore, I find a verdict for the piaintirf for £410 and judgment will be entered accordingly; the defendant must pay the plaintiff's costs.