Neale v Atlas Products (Vic) Pty Ltd [1955] HCA 18

H. C. or A.

1954. Ww

WRIGHT v. ATTORNEY- GENERAL FOR THE STATE OF TASMANIA.

Fullagar J.

HIGH COURT (1954.

the Full Court that these contain no material on which the findings of Gibson J. can be challenged.

After referring to the findings of Gibson J., and after quoting from the judgments of Dixon J. in Queensland Stations Pty. Lid. v. Federal Commissioner of Taxation (1), and in Humberstone vy. Northern Timber Mills (2), Morris 0.3. said: "It is obvious that each case must depend upon its own facts. This one has the charac- teristics which weighed with Dizon J. in Humberstone's Case (3) . . . I think the learned trial judge was right in coming to the conclusion that Lee was an independent contractor and not an employee "'.

I agree, with respect, with the passage which I have quoted. There were features in Humberstone's Case (3) which are not present in this case. On the other hand, the actual terms of the relevant contract are perhaps established more clearly in this case than they were in Humberstone's Case (3). It is, I think, trué in this case, as it was in that case, to say, as Dizon J. said: "The essence of a contract of service is the supply of the work and skill of a man. But the emphasis in the case of the present contract is upon mechanical traction. This was to be done by his own property in his own possession and control. There is no ground for imputing to the parties a common intention that in all the management and control of his own vehicle, in all the ways in which he used it for the purpose of carrying their goods, he should be subject to the commands of the respondents" (4).

With regard to the argument of the appellant based on negligence in the construction of the road, as distinct from Lee's negligence in driving it is enough to say that the evidence did not establish that any negligence other than Lee's negligence in driving was a material cause of the collision, and the Crown cannot be made liable unless Lee was its servant.