Wright v Attorney-General for Tasmania [1954] HCA 26

H. C. or A.

1955-1956. Sy,

TozER Kemstry & MILLBOURN

(A'AsrA) Pry. Lrp. vw. CoLurer's INTERSTATE TRANSPORT SERVICE Lrp.

HIGH COURT (1955-1956.

opinion that it cannot be supported. An action for money lent or money paid or money had and received may be in a sense "based on contract", but it is certainly not an action for damages for breach of contract, and quite different considerations apply. I agree generally with the views expressed by Mr. R. Lowenstern in an. article in the Australian Law Journal (1): see also John v. Coles (2), and cases there cited.

The appeal should, in my opinion, be allowed. It was agreed that the value of the iron at the material time was £2,096. There should be judgment for the plaintiff for that amount.

Kirro J. I agree with the judgment of my brother F ullagar and have nothing to add.

Appeal allowed with costs. Discharge judgment of Supreme Court and in lieu thereof enter jgudament for the plaintiff in the action for £2,096 and costs including costs of pleadings, interrogatories, discovery, if any, and shorthand notes.

Solicitors for the appellant, Lynch & MacDonald. Solicitors for the respondent, Pawey, Wilson, Cohen & Carter.

Re Des:

(1) (1928) 2 A.L.J. 191. (2) (1981) S.A.S.R. 254.

94 C.L.R.] OF AUSTRALIA. 409

[HIGH COURT OF AUSTRALIA.]

WRIGHT . a : ; : : : ; APPELLANT } PLAINTIFF,

RESPONDENTS.

ATTORNEY-GENERAL FOR THE STATE OF TASMANIA AND OTHERS DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF TASMANIA.

Master and Servant—Hire of private truck by public department—Cartage of gravel H.C. or A. etc. for roadmaking—Hire paid at hourly rates adjusted by mileage allowance— 1954. Negligence of owner-driver engaged on cartage—Responsibility of department for hoe aut injury so caused—Owner-driver servant of department or independent contractor . Hosart,

W. was killed as the result of a collision between a car in which he was a Mar. VO-18;