Behrendorff v Soblusky - [1957] HCA 84

BEHRENDORFF AND ANOTHER SOBLUSKY

RESPONDENT. Negligence-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

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 insured thereunder every person other than the owner who at any time is in charge of such motor vehicle, whether or not with the owner's authority, shall be deemed to be acting in relation thereto within the scope of his authority as such agent.

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.

Held: that, since the second defendant was in full control of the car, the view that he was SO in charge of the car was fairly open, and that special leave

98 CLR 620

should not be granted in order that such a question should be canvassed, particularly as the point was not raised before the Full Court.

Samson v. Aitchison (1912) A.C. 844, and Ormrod v. Crosville Motor Services Ltd. (1953) 1 W.L.R. 409; 1120, referred to.

APPLICATION for special leave to appeal.

By an action commenced in the Supreme Court of Queensland, Maryborough District Registry, by way of writ of summons and based on S. 3 (2) of The Motor Vehicles Insurance Act of 1936, as amended, the plaintiff, Ogust Mathias Soblusky, claimed from the defendants, Keith Leslie Behrendorff and Bernard William Lewis respectively, damages for personal injury, loss and damage caused by, through or in connexion with a motor vehicle allegedly being driven negligently by the defendant Bernard William Lewis.

The insurance commissioner, as defined under The Insurance Act of 1916 (Q.), as being the licensed insurer of Behrendorff pursuant to the provisions of The Motor Vehicles Insurance Acts of 1936 to 1945 and the regulations made thereunder in respect of Soblusky's claim for accidental bodily injury, elected to be joined in the action.

At…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Behrendorff v Soblusky

Details

AGLC: Behrendorff v Soblusky [1957] HCA 84
Case: [1957] HCA 84
Decision Date: 3 December 1957

CaseChat Overview and Summary

This case concerned an application for special leave to appeal to the High Court of Australia following a decision of the Full Court of the Supreme Court of Queensland. The plaintiff, Mr. Soblusky, had been injured while travelling in a car that he had exchanged under a hire-purchase agreement with the first defendant, Mr. Behrendorff. The car was being driven by the second defendant, Mr. Lewis, at Mr. Soblusky's request. Mr. Soblusky brought an action against both Mr. Behrendorff, as the registered owner of the vehicle, and Mr. Lewis, claiming damages for his injuries.

The central legal issue before the court was the interpretation and application of section 3(2) of The Motor Vehicles Insurance Act 1936 (Q.). This provision deemed any person in charge of a motor vehicle, other than the owner, to be the owner's authorised agent acting within the scope of their authority, for the purposes of claims for accidental bodily injury. The applicants, Mr. Behrendorff and his insurer, contended that Mr. Lewis, the driver, was not "in charge" of the vehicle within the meaning of the Act, and further argued that even if he was deemed to be Mr. Behrendorff's agent, he was also acting as Mr. Soblusky's agent, thereby negating Mr. Behrendorff's vicarious liability.

The High Court, in refusing special leave to appeal, affirmed the reasoning of the Full Court. The Court held that section 3(2) of the Act created a statutory agency that imputed liability to the owner, Mr. Behrendorff, irrespective of the actual relationship between Mr. Lewis and Mr. Soblusky. The Court found that the argument that Mr. Lewis was also Mr. Soblusky's agent did not intercept the statutory liability imposed on Mr. Behrendorff. Furthermore, the Court considered the argument that Mr. Lewis was not "in charge" of the vehicle to be primarily a question of fact, and given that Mr. Lewis was in full control of the car and this point was not raised before the Full Court, special leave was not warranted to canvass this issue.

Consequently, the application for special leave to appeal was refused with costs.

Orders