Scott v Davis [2000] HCA 52

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, HAYNE AND CALLINAN JJ

TRAVIS KANE SCOTT & ORS APPELLANTS

AND

GEOFFREY ARTHUR DAVIS RESPONDENT

Scott v Davis [2000] HCA 52

5 October 2000

A16/1999

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of South Australia

Representation:

W J N Wells QC with A L Tokley for the appellants (instructed by Johnston Withers)

D M Quick QC with K G Nicholson for the respondent (instructed by Thomson Playford)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Scott v Davis

Negligence – Vicarious liability – Agency – Whether owner of aircraft vicariously liable for negligence of person who flew aircraft with owner's consent for a social purpose connected with owner.

Negligence – Vicarious liability – Aircraft – Motor vehicles – Negligent use of chattel of conveyance – Whether the principles in Launchbury v Morgans [1973] AC 127 apply – Non-delegable duties of care – Strict liability.

1. GLEESON CJ. The issue in this appeal is whether the respondent, the owner of a light aeroplane which crashed as a consequence of the negligence of the pilot, is vicariously liable for such negligence. 2. The pilot was killed in the crash. One of the appellants, who was a passenger, and who was being taken for a joy-ride, was seriously injured. The other appellants, the parents of the passenger, suffered nervous shock. 3. A claim that the respondent was personally negligent in relation to the circumstances surrounding the flight was unsuccessful at the trial, and was not pursued in this Court. The pilot was regarded by the respondent as competent. An allegation of carelessness in entrusting the control of the aeroplane to him was considered and rejected. The present appeal has been argued on the basis that the respondent was not personally at fault. 4. The facts are set out in the judgment of Gummow J. The principle upon which the appellants rely for their contention that those facts give rise to vicarious liability in the respondent is elusive. There are a number of reasons for that. They include the protean nature of the concept of agency, which bedevils this area of discourse. In the leading English case on the subject[1], Lord Wilberforce made the point that to describe a person as the agent of another, in this context, is to express a conclusion that vicarious liability exists, rather than to state a reason for such a conclusion. Nevertheless, some judges refer to agency as a criterion of liability, similar to employment. If that is to be done, it is necessary to be more particular as to what is meant. 5. It is not contended that the respondent was subject to a non-delegable duty of care, or that he authorised or ratified a negligent act of the pilot. Those possible grounds of liability may be put to one side. 6. A claim that an owner or a bailee of a chattel is vicariously liable for the negligence of another person who has the temporary management of the chattel, even when that other person is not an employee of the owner or bailee, is a familiar feature of modern litigation. It forms the foundation of many actions for damages for personal injury, or for injury to property, arising out of the use of a motor vehicle. In personal injury cases, such a claim is commonly supported by a statutory presumption which, in turn, forms part of a scheme of compulsory insurance[2]. Where there is no such statutory presumption, the claim requires the support of a principle of common law. 7. Whatever the principle is, even though the most common occasion for its application is, nowadays, the negligent driving of motor vehicles, it cannot apply only in respect of motor vehicles. There are three reasons for that. 8. First, even though the line of authority which the more recent cases profess to follow may provide an insecure foundation for some of the propositions enunciated in those cases, the earlier authorities relied upon were concerned with horse-drawn carriages which, at the time, provided commonplace examples of chattels which, if negligently managed, could cause harm to third parties. As was pointed out in Soblusky v Egan[3], the law governing the vicarious responsibility of the owner or bailee of a motor vehicle for the negligence of its driver was established in horse and buggy days[4]. Horse-drawn conveyances still exist. The law concerning them did not cease to apply with the invention of the motor vehicle. Furthermore, as the judgment of Jordan CJ in Christmas v Nicol Bros Pty Ltd[5] demonstrates, cases about ships and railway trains have involved the same issue. In 1975, the Supreme Court of Ireland divided on the principle to be applied to the case of a negligently managed teapot[6]. 9. Secondly, the leading Australian and English cases are inconsistent with the suggestion that there is a special principle of common law applying to motor vehicles. As was noted, the rule applied in Soblusky v Egan[7] was traced back to horse and buggy days. In Launchbury v Morgans, Lord Wilberforce denied that a special rule applied to motor cars, and expressed the rule to be applied as one relating to chattels generally[8]. So did Lord Cross of Chelsea[9]. 10. Thirdly, as a number of their Lordships pointed out in Launchbury v Morgans[10], to create a special rule for motor vehicles is a legislative, not a judicial, function. There is no legitimate basis upon which a court, in declaring the common law, can conclude that there is one rule for motor vehicles and a different rule for horse-drawn carriages, railway trains, motor boats, sailing vessels, or aeroplanes. Legislatures may draw, and have drawn, such distinctions, but that illustrates the difference between legislation and judicial development of the principles of the common law[11]. 11. The principle by which the existence of vicarious liability is to be determined is to be distinguished from evidentiary considerations concerning the facts relevant to the application of the principle. The nature of the chattel in question, or, if it be a motor vehicle, the nature of the motor vehicle, or the nature of the occasion of its use, may be significant for the purpose of drawing inferences as to the relationship between an owner or bailee and a person for whose negligence the owner or bailee is claimed to be responsible[12]. However, such considerations are immaterial in the present case, where the facts as to the relationship between the respondent and the pilot of the aeroplane are known. 12. In Soblusky v Egan[13] the bailee of a motor vehicle was a passenger in the vehicle, asleep, when negligence of the driver resulted in the damage the subject of the action. The bailee was held by this Court to be vicariously responsible for the driver's negligence. The principle upon which that conclusion was based was said to be drawn from a long line of authority, including the decision of the Privy Council in Samson v Aitchison[14]. The Court said[15]: