Behrendorff v Soblusky [1957] HCA 84

Gons i, orl Cle ny

rs y SsfTOUR

98 C.L.R.] OF AUSTRALIA.

(HIGH COURT OF AUSTRALIA.)

BEHRENDORFF AND ANOTHER . : . APPLICANTS ;

AND

SOBLUSKY . s 5 3 : i . RESPONDENT.

Negl

igence—Vicarious liability—Agency—Motor car driven by friend of " owner "— " Owner" present—Accident—Car driven at " owner's" request—Mutual pur- pose—Negligence of car driver—Responsibility of owner—The Motor Vehicles Insurance Acts 1936 to 1945 (Q.), s. 3 (2).

The plaintiff had possession of a panel van under an hire-purchase agree- ment: the first defendant had possession of a car under another hire-purchase agreement. They exchanged vehicles. The plaintiff was injured while travelling in the car which he had handed over to the second defendant to drive.

Section 3 of the Motor Vehicles Insurance Act 1936 (Q.) as amended provides that for the purposes of every claim for accidental bodily injury, fatal or non- fatal, to any person caused by, through or in connexion with a motor vehicle

y F charge of such motor vehicle, whether or not with the owner's authority, shall

sured thereunder eves

son other than the owner who at any time is in be deemed to be acting in relation thereto within the scope of his authority as such ageat.

'The plaintiff brought an action under the statute against the first defendant

as the owner of the car and against the second defendant as his authorised agent. He was awarded damages and the defendants' appeal to the Full

Supreme Court was dismissed. 'They applied for special leave to appeal.

Held: that though by imputation of law the second defendant may have been the plaintiff's agent, this could not affect the liability of the defendants to the plaintiff under the statute.

At the hearing of the application counsel for the defendants contended that the second defendant was not in charge of the motor vehicle within the mean- ing of the section.