| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BELL -v- THE STATE OF WESTERN AUSTRALIA [2003] WADC 18 CORAM : COMMISSIONER GREAVES HEARD : 21-23 OCTOBER 2002 DELIVERED : 12 FEBRUARY 2003 FILE NO/S : CIV 2856 of 1999 BETWEEN : AARON LESLIE BELL Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords: Negligence - Survey of houseboat - Duty of surveyor to exercise reasonable care, skill and diligence in inspecting and surveying houseboat - Surveyor in breach of duty on facts - Surveyor entitled to statutory immunity in purported discharge of duty - Immunity of surveyor cannot co-exist with liability of State
Legislation: Western Australian Marine Act 1982, s 124
Result: Action dismissed
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Representation:
Counsel:
Plaintiff : Mr B J Singleton QC
Defendant : Mr B P King
Solicitors:
Plaintiff : Bradley & Bayly
Defendant : State Crown Solicitor
Case(s) referred to in judgment(s):
Broom v Morgan [1953] 1 QB 597
Cowell v Corrective Services Commission of New South Wales & Anor (1988) 13 NSWLR 714
De Bruyn v South Australia (1990) 54 SASR 231
Parker v The Commonwealth of Australia (1965) 112 CLR 295
Case(s) also cited:
Nil
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1 COMMISSIONER GREAVES: In March 1998, the plaintiff agreed to purchase a Riverstar houseboat from the Australian Caravan Co for the sum of $43,000. The hull of the houseboat was manufactured by Hydrocats at Canning Vale. The Australian Caravan Co then added the superstructure to the hull. The plaintiff intended to make the houseboat available for hire at Broome. In April 1998, Hydrocats lodged an application for the initial survey of a commercial vessel with the then Department of Transport (Exhibit 10) in respect of the houseboat. On 11 May 1998, Mr James Tong, a naval architect surveyor in the employ of the Department of Transport, wrote to Mr Steve Palmer at Hydrocats the following letter (Exhibit 12):
"Dear Steve Re: 7.45m Hire & Drive House Boat Thank you for your recent application to build the above vessel. Please be informed that the survey requirements of the vessel are as follows: 1. The owner of the boar is required to make an application for a hire & drive licence before a certificate of survey can be issued. A guide to hire and drive operations in WA (with application form attached) is enclosed for your necessary action. 2. A vessel number 'MH4850' has been allocated to this vessel. Please weld the number on the vessel for identification purposes and for all future correspondence. 3. The construction plan (2 A3 size sheets) have been approved subjected to • welding inspection is checked and certified by a DOT surveyor. • brackets and connections are to the satisfaction of the surveyor. • watertightness, construction integrity and bilge pump/piping arrangement are satisfactory. 4. Portable petrol tank is to be enclosed in a compartment.
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5. Gas detector is required if LP gas appliance/bottle is stowed in the accommodation area. 6. Rigid buoyancy aid is required for 100% complement if the vessel is not fitted with built-in foam buoyancy. 7. Low flame spread surface material shall be used in the accommodation area. 8. Stability test shall be carried out when the vessel is completed. 9. Others: See section 5.1 and 5.7 of USL Codes." 2 In or about June 1998, Mr Tong inspected the hull of the houseboat while it was under construction at Hydrocats' premises. Mr Tong subsequently inspected the fitting-out of the cabin of the houseboat at the premises of the Australian Caravan Co prior to its completion. Mr Tong noticed a transom door cut-out which was not shown on the plans of the houseboat. A representative of the Australian Caravan Co, Murray Pollock, told Mr Tong the purpose of the transom door was to permit entry and exit on the houseboat when used as a caravan on its trailer. Mr Tong told Mr Pollock the door required a seal, clamps, and a sign warning that the door must not be opened while the houseboat was afloat. 3 On 6 July 1998, Mr Tong carried out a stability test on the houseboat and the stability was found to be acceptable with the transom door closed. On 7 July 1998 Mr Tong attended the premises of the Australian Caravan Co and tested the seal of the transom door. 4 The facts I have stated are not in dispute between the parties. The plaintiff gave evidence (T22) he first met Mr Tong at the premises of the Australian Caravan Co. He said Mr Tong gave him Exhibit 4 and told him a certificate of survey would be issued after the plaintiff fitted the items listed in Exhibit 4 in the houseboat. He continued (T23 – 24): "At no stage at all was I ever advised that the vessel needed to have a locked, sealed, clamped transom door at all under any condition. If that had have been said to me, then there would be absolutely no way that I would have ever taken delivery of the vessel due for the simple fact that I required it to be fully functional to be able to be used in a hire and drive situation where novice clientele could use it in sheltered waters in any situation, …
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… At no stage whatsoever was it mentioned that the vessel while on water had to have the transom door sealed. If that was ever mentioned to me I would have said that was a ridiculous situation for the simple fact that in the boat being used for its due course, that people would obviously want to be able to use it in a recreational situation, being able to go for a swim and get in and out of the vessel while on water. If that was the case, then once again I would have had it rectified so that when I did take possession of the vessel it was fully able to be used in a hire and drive situation." 5 The plaintiff went on to say Mr Tong did not tell him Mr Tong required a sign to be fixed to the transom gate. He continued (T32): "Was there anything said to you that you must keep at all times the transom platform door closed when the vessel was used in water?---It was never mentioned to me at any stage that the transom door had to be in a closed position in any situation. Was there any mention to you that dependent on the nature of where the vessel was to be used there could be a danger because of leakage through the perimeters of the transom door?---There was never mentioned to me any danger in regard to any part of the vessel structure at all. Were you ever told that the transom door had to be shut at all times when in water?---Never at any stage was I told that the transom door had to be shut while operating the vessel on water. At any stage were you told that you must install a sign warning the users, the hirers, of the boat that the transom door had to remain shut at all times whilst at sea?---I was never indicated there was any problem or any reason to have a sign attached to the rear of the transom door, or the inside of the transom door. … At any stage did Mr Tong indicate to anyone else in your presence that the transom gate should be closed at all times when the boat was in the water?---At no stage at all had I any reason to suspect from overhearing any comments or comments made to me at all that there was a problem with the transom door."
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6 In cross-examination, the plaintiff said (T39) at no stage at all was there any discussion about the cut-out door. He said (T40) when he first saw the houseboat the hull, the transom with the cut-out in it and the caravan superstructure were assembled. He thought the door was installed afterwards because it became part of the stern. He referred to Exhibit 9 and explained how the door was lowered and the stairs dropped into the water. The plaintiff said (T42) he could not recall a conversation with Mr Pollock about the door. He said he sought no independent advice about the construction of the boat. He added:
"I left the advice that I was going to be receiving to the Department of Transport through survey. That's the advice I was looking for, to make sure that the vessel was going to be adequate for a hire and drive situation." 7 The plaintiff agreed he received no certificate of survey for the houseboat. The plaintiff agreed (T45) he spoke to Mr Tong at the premises of the Australian Caravan Co on 7 July 1998. He said he could not recall the conversation save that Mr Tong handed him Exhibit 4. He repeated he did not speak to Mr Pollock about the transom door. The plaintiff recalled he told Mr Tong it was his intention to take the boat to Broome. He thought Mr Tong may have mentioned the need to obtain a private boat registration licence before using the houseboat for his own purposes (T48). He agreed he did not obtain such licence. 8 The plaintiff said he took delivery of the boat during July 1998 and towed it to Port Hedland on the way to Broome, arriving on 22 July 1998. He used the boat as a caravan on dry land and thereafter in the water on three or four occasions. He said (T53) he noticed the cut-out door was close to the water line. He continued (T53): "… It didn't seem to present a problem to my mind because I had been told that the vessel had had a stability test with five adult people on it, so that I would presume if something has gone through a survey requirement that allows five adult people on it that five adult people would be able to stand in any particular spot on that vessel and the vessel not take water." 9 On 30 August 1998, the plaintiff put the houseboat to sea in calm waters in Port Hedland with four adults and a child on board. The plaintiff lowered the transom door to allow those on board to enter the water from the houseboat and to return. While one of the adult passengers was standing on the ladder to the transom door re-boarding the houseboat
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and another was standing by the transom, the vessel heeled and began to take on water through the transom door opening. Within five minutes the vessel sank. 10 By consent, the plaintiff tendered the report of Peter A Edmonds, naval architect, dated 19 November 1999 in relation to the houseboat (Exhibit 9). 11 The defendant called the marine surveyor, Mr James Tong. He explained (T67) when he first saw the plans (Exhibit 2) there was no indication of a cut-out door at the stern of the houseboat. He saw the hull at Hydrocats and it had no cut-out in the transom (T70). Thereafter he inspected the houseboat at the premises of the Australian Caravan Co and once again there was no cut-out door in the stern of it. On a subsequent inspection, Mr Tong noticed a cut-out door had been installed in the stern of the houseboat (T71). He said he told Mr Pollock "the cut-out door was not desirable". He continued: "It doesn't comply with requirements, because the vessel was assessed as an open boat. … because there wasn't a sealed deck that could keep the water away if water gets into the boat." He said he told Mr Pollock "You need to have clamps and seals to keep it watertight." (T72) He said he told Mr Pollock the door should not be used when the vessel was in the water. He said (T73) the vessel passed the stability test on 6 July 1998. He said the stability test was undertaken with the door closed. (T74) He said he saw the houseboat again the following day, 7 July 1998. Mr Tong said he told Mr Pollock there had to be a sign "Not to be opened at sea" on the transom door. He said he told Mr Pollock a certificate of survey could not issue until all the items on Exhibit 2 had been supplied. He said he met the plaintiff on 7 July 1998. He said (T77): "I told him that I can't give him the certificate yet because there's a list of outstanding items. … I did tell him that provided it complied with the outstanding items, even if the vessel is in Broome, it could pass the survey provided it is inspected by one of the department's representatives and a marine officer stationed in Broome." 12 Mr Tong said he did not recall talking to the plaintiff about the transom door (T78).
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13 Mr Tong said he filled out Exhibit 14, the survey report. He said Exhibit 14 repeats the information contained in Exhibit 2.
14 In cross-examination, Mr Tong said (T89) Exhibit 14 is a list of items he pre-prepared in his office before he left for the premises of the Australian Caravan Co for the final survey check. He said for that reason Exhibit 14 contains no reference to the transom door or sign. He continued (T90): "This is not final documentations to be issued. It simply reminds me what other items are to be checked and I give this to Murray and Mr Bell to help them with what other outstanding, remaining outstanding, items, and the sign – I already told Mr Pollock at that stage and I didn't anticipate that it was a problem to comply with." 15 Mr Tong said he did not give a copy of Exhibit 14 to Mr Bell. 16 Counsel for the plaintiff showed Mr Tong Exhibit 15, a letter he wrote to the Australian Caravan Co on 10 July 1998 in relation to any future construction of similar houseboats. That letter also makes no mention of the transom door or sign. Mr Tong said he made no mention of it because he did not think it was an important issue at that stage. (T94) 17 Mr Tong was referred to his note in Exhibit 14: "Certificate on hold pending owner to register with hire and drive and equipment …" He agreed the note referred to the survey certificate. Mr Tong rejected the suggestion that his evidence that he required Mr Pollock to fix a sign on the transom door was a recent invention. He agreed he made no note on Exhibit 2, 14 or in his file of the requirement. He agreed he did not tell the plaintiff and he agreed he made no mention of it in Exhibit 15 (T98). 18 Counsel for the plaintiff referred Mr Tong to Exhibit 16, his internal memorandum of 17 November 1998 in which Mr Tong comments on the circumstances in which the houseboat sank. In the course of his observations in Exhibit 16, Mr Tong expresses the opinion he expected the transom door would be used when the houseboat was tied up to the jetty. He agreed in cross-examination Exhibit 16 makes no reference to the sign he said he required to be fixed to the transom door. 19 In Exhibit 9, at par 1.2(e) Mr Edmonds says: "The major issue is that where the transom door was positioned it was not possible to operate safely with the door in an open
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position, as the required freeboards were reduced to totally unacceptable values. In certain loading conditions – even without wind or passenger or wave motion – the door still would actually be below water level. Our conclusion is that, while there may have been a number of deficiencies in the design, construction and survey of the vessel, the major problem was that the presence of the transom door rendered the vessel unsafe and unsuitable for the purchaser's specified duty of a Hire-and-Drive Houseboat." 20 The plaintiff's case is pleaded at par 7A of the substituted re-amended statement of claim as follows: "7A 7A.1 In or about May 1998 the houseboat underwent inspection for survey purposes by an officer of the defendant namely one J Tong being a servant and agent of the defendant with the defendant being paid for such survey inspection by Australian Caravan Co. 7A.2 At the time of such inspection the houseboat was defective. PARTICULARS OF DEFECTS 7A.2.1 There was a door in the transom of the vessel at a level which would permit the houseboat to take water under normal operating load conditions: 7A.2.2 No fixed foam buoyancy was provided in the houseboat. 7A.3.1 Notwithstanding the defects hereinbefore pleaded the defendant through its servants and agents conditionally passed the houseboat for survey subject to the provision of life belts and certain other onboard safety equipment. 7A.3.2 Notwithstanding the said defects the defendant's servant and agent the said
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7A.4 In conditionally approving the houseboat for survey as hereinbefore pleaded the defendant and its servants and agents breached its duty to exercise reasonable care, skill and diligence towards the plaintiff. PARTICULARS OF NEGLIGENCE The defendant and its servants and agents were negligent in that they: 7A.4.1 Conditionally approved the houseboat for survey when by reason of the presence of the door in the transom of the vessel it was in danger of sinking in normal operating conditions. 7A.4.2 Conditionally approved the houseboat for survey when by reason of the absence of fixed buoyancy material it was in danger of sinking in normal operating conditions. 7A.4.3 Failed to detect the presence and significance of the door in the transom of the vessel.
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21 The defendant answers these allegations at pars 4 – 10 of the amended defence in the following manner. "4. Save for admitting that James Tong was a servant of the defendant the defendant does not admit paragraph 7A.1 of the substituted Re-amended Statement of Claim and says that: (a) James Tong was an official of the Department of Transport; (b) James Tong was designated by the Chief Executive Officer of the Department of Transport to be a surveyor for the purposes of the Act; (c) in early May 1998, following an application on 17 April 1998 by one Steve Palmer, James Tong, considered and approved plans for a 7.45 metre houseboat, not being the houseboat the subject of the claim; and (d) in or about June 1998, James Tong commenced inspection of: (i) the manufacture of the hull of a houseboat, being the houseboat the subject of the claim ('the houseboat') at the premises of Huka Pty Ltd and Steve Palmer; and
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(ii) the fitting out of the cabin of the houseboat at the premises of David Appleby and Dayka Pty Ltd. 5. The defendant denies that the houseboat was defective as alleged in paragraph 7A.2 of the substituted Re-amended Statement of Claim and as particularised in paragraphs 7A.2.1 and 7A.2.2 of the substituted Re-amended Statement of Claim and says that: 6. The defendant denies that it conditionally passed the houseboat for survey as alleged in paragraph 7A.3.1 of the substituted Re-amended Statement of Claim and says that it issued no certificate of survey with respect to the houseboat in any form or manner whatsoever. 7. As to paragraph 7A.3.2, the defendant says that on 7 July 1998 James Tong orally advised the plaintiff that if the plaintiff complied with further requirements including buoyancy aids, life jackets and other onboard safety equipment, the houseboat would pass survey. 8. The defendant does not admit paragraph 7A.3.3 of the substituted Re-amended Statement of Claim and says that: (a) James Tong understood the plaintiff's intentions to be to use the houseboat as a private vessel before using it for the purpose of hiring it out to customers; and
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22 The application for the initial survey of a commercial vessel (Exhibit 10) shows the then Department of Transport received the application on 17 April 1998 and the surveyor in charge was Mr Tong. Thereafter Mr Tong embarked upon a survey of the houseboat in the manner disclosed by the evidence. Indeed, the plea in par 7 of the amended defence is predicated upon the fact that the then Department of Transport by its employee Mr Tong was at all material times embarked upon a survey of the houseboat. 23 The defendant denies the allegation Mr Tong conditionally passed the houseboat for survey subject to the provision of lifebelts and certain
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other onboard safety equipment and alleges Mr Tong orally advised the plaintiff that if the plaintiff complied with the further requirements in Exhibit 4, the houseboat would pass survey. The defendant, therefore, admits the facts upon which the allegation in par 7A.3.1 is made. There is no evidence the defendant "conditionally passed" the houseboat for survey and there is equally no issue between the parties on the pleadings and evidence that Mr Tong told the plaintiff that if the plaintiff complied with his further requirements in Exhibit 4, the houseboat would pass survey. Further, there is no issue between the parties on the pleadings and evidence that the then Department of Transport issued no certificate of survey in respect of the houseboat at any material time. 24 As I have explained, the plaintiff alleges the defendant owed the plaintiff a duty to exercise reasonable care, skill and diligence in inspecting and surveying the houseboat. The plaintiff's case on the pleadings and evidence is that the defendant was in breach of the alleged duty to exercise reasonable care, skill and diligence in inspecting and surveying the houseboat because, firstly, Mr Tong told the plaintiff the houseboat would pass survey if he complied with Exhibit 4, and secondly, Mr Tong did not tell the plaintiff the transom door should not be opened while the houseboat was in the water and did not tell the plaintiff Mr Tong required a sign to be fixed to the transom door warning against the use of the door while the houseboat was in the water. 25 It will be observed the latter allegation of a failure on the part of Mr Tong to inform the plaintiff in the manner I have outlined is not made express on the pleadings, but as the evidence to which I have referred discloses was fundamental to the plaintiff's case as it proceeded before me. On that evidence, there is no issue between the parties that Mr Tong did not so inform the plaintiff. 26 The case for the plaintiff, therefore, is that the defendant owed the plaintiff a duty to exercise reasonable care, skill and diligence in inspecting and surveying the houseboat and was in breach of that duty because the defendant, through Mr Tong, did not inform the plaintiff he should not use the transom door while the houseboat was in the water and did not inform the plaintiff he required a sign to be placed on the transom door to that effect. In the course of cross-examination of Mr Tong, counsel for the plaintiff sought to make out the allegation at par 7A.4.3 that he failed to detect the presence and significance of the door in the transom of the vessel, but I accept the evidence of Mr Tong that by the time he conducted the stability tests on the houseboat on 6 July 1998 and
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further inspected the vessel on 7 July 1998, he was aware of the presence and significance of the door in the transom of the houseboat. 27 As I have explained, the defendant denies the alleged duty and breach and, curiously, alleges in par 10(b) of the amended defence the vessel was not in danger of sinking in normal operating conditions by reason of the presence of the transom door, while the defendant also alleges in par 10(c) that Mr Tong required the Australian Caravan Co to ensure that the transom door had adequate clamps, seal and signage warning that the door must not be opened while the houseboat was afloat and further tested the seal on the transom door to ensure that it was adequate. 28 On the pleadings and evidence, no conclusion is open other than that the houseboat could not be operated safely in the water with the door in an open position, as the expert evidence of Mr Edmonds clearly demonstrates. 29 The first issue, therefore, for determination on the pleadings and evidence is whether the defendant owed the plaintiff a duty to exercise reasonable care, skill and diligence in inspecting and surveying the houseboat as alleged and was in breach of that duty by failing through Mr Tong to inform the plaintiff the houseboat could not be operated safely in the water with the transom door open and in failing to inform the plaintiff he required a sign to be placed on the transom door to that effect. 30 By par 1 of the defendant's outline of submissions on liability, counsel for the defendant accepted Mr Tong owed the plaintiff a duty of care in relation to the survey of the vessel. At par 7 of that outline counsel submitted: "7. The evidence establishes that: (a) Mr Tong required the manufacturer to install clamps and a seal on the door and affix signage warning that the door not be opened while the vessel was afloat. (b) Mr Tong tested the door seal and ascertained that it functioned satisfactorily. (c) The manufacturer's manager gave Tong a clear undertaking to affix the signage to the door and to a position near the helm.
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(d) Mr Tong had no reason to doubt that the undertaking would be effected immediately. (e) Therefore, it was reasonable for Mr Tong to have fulfilled a duty of care to the plaintiff, a third party, by imposing a simple requirement on the manufacturer and accepting that the requirement would be met – there was no reasonable requirement for Mr Tong to have told the plaintiff, who was present only fortuitously, not to open the transom door while the vessel was afloat. Put another way, Mr Tong owed no duty to that plaintiff to tell him of requirements imposed on the manufacturer." 31 The first question for determination is whether what Mr Tong did was reasonable in the particular circumstances as revealed by the evidence of the manner in which he conducted the survey of the plaintiff's houseboat. In my view it was not. After Mr Tong noticed a cut-out door had been installed in the stern of the houseboat, he knew the houseboat could not be operated safely in the water with the door open. For that reason, he tested the seal. On 7 July 1998, he told the plaintiff the houseboat could pass survey if the items in Exhibit 4 were installed. He did not tell the plaintiff the houseboat could not be operated safely in the water with the door open. 32 He told Mr Pollock the houseboat could not be operated safely with the door open, but he did not tell the plaintiff, who he knew was going to operate the houseboat. Mr Tong does not explain why he did not tell the plaintiff on 7 July 1998. It would have been easy to do so. It was unreasonable not to and carried with it the obvious risk the plaintiff might operate the houseboat when it was not safe to do so. Since Mr Tong made no mention of the door in Exhibit 4 or Exhibit 14, his conduct also carried with it the risk a certificate of survey may have subsequently been issued without the required notice warning the operator it was unsafe to open the door while the houseboat was afloat. In the result, the inevitable happened. 33 In my opinion, the evidence establishes on the balance of probabilities the defendant was in breach of its duty to the plaintiff by failing through Mr Tong to inform the plaintiff the houseboat could not be operated safely in the water with the transom door open and in failing to
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inform the plaintiff he required a sign to be placed on the transom door to that effect. 34 In the alternative, the defendant pleads in par 12 of the amended defence that if the plaintiff suffered damage, it was as a result of the negligence of the plaintiff in failing to ensure the transom door was properly closed and clamped when the houseboat was afloat. In the light of the conclusions I have reached, this plea is not open to the defendant. The consequence of the houseboat sinking and resultant damage was within the risk created by the negligence of the defendant as I have found, and there is no evidence the plaintiff contributed to the damage which he suffered. 35 The next issue for determination on the pleadings is that raised by par 13 of the amended defence where it is pleaded: "13. The defendant (a) denies that the plaintiff is entitled to damages against the defendant; and (b) says that, at all material times James Tong was an official of the Department of Transport and was a person acting with the authority of the Chief Executive Officer of the Department of Transport in good faith and in the exercise of a power or in the discharge or purported discharge of a duty under the Act and that, in any event, by virtue of section 124 of the Western Australian Marine Act 1982 no liability for the damages claimed can attach to the defendant." 36 Section124 of the Western Australian Marine Act 1982 provides: "No liability shall attach to the Minister, the chief executive officer or any other official of the Department, or to any person acting with the authority or on the direction of the Minister or the chief executive officer in good faith and in the exercise or purported exercise of a power or in the discharge or purported discharge of a duty under this Act." 37 Counsel for the defendant submitted the evidence establishes that, at all material times, Mr Tong was an official of the Department of Transport acting with the authority of the chief executive officer in good
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faith and in the discharge of his duties. The defendant admits Mr Tong was a servant of the defendant (par 4 of the amended defence). As I have already observed, the defendant accepts Mr Tong owed the plaintiff a duty to exercise reasonable care, skill and diligence in inspecting and surveying the houseboat. I have found the defendant was in breach of that duty by failing through Mr Tong to inform the plaintiff the houseboat could not be operated safely in the water with the transom door open and in failing to inform the plaintiff he required a sign to be placed on the transom door to that effect. 38 In the circumstances as I have found them, that duty and breach arose in the discharge by Mr Tong of his duty to conduct the survey of the houseboat under the Act. Counsel for the plaintiff submitted the court should distinguish between negligence, acts and omissions under s 124 of the Act, but it seems to me to be clear the duty of Mr Tong arose in the discharge of his duty under the Act, so that a proper construction of the section does not admit in the circumstances of the distinction advanced by counsel for the plaintiff. It follows Mr Tong is entitled to immunity under s 124 of the Act. 39 The question then is whether the defendant, as the employer of Mr Tong is entitled to the same immunity or whether the defendant is vicariously liable to the plaintiff for the negligence of its servant, Mr Tong. Counsel for the defendant submitted, therefore, the issue for determination boils down to an interpretation of the effect of s 124 of the Act and to the application of the principles applicable to the vicarious liability of the State for its officers when such officers are immune from liability under that section. He submitted the principle of vicarious liability only results in an employer being liable for the acts or omissions of an employee if the employee would be liable; the employer cannot be liable if the employee is immune from liability by virtue of a statutory immunity. Counsel for the plaintiff also sought to draw a distinction between the defendant as the State of Western Australia and the Minister and submitted s 124 of the Act does not purport to confer immunity on the State of Western Australia. In my view, if the Minister is entitled to immunity so is the State of Western Australia for the purposes of s 124 of the Act. 40 Windeyer J put the question another way in Parker v The Commonwealth of Australia (1965) 112 CLR 295 at 303 when in the circumstances of that case he posed the question whether immunity of the servant can co-exist with a liability of his master. His Honour said he recognised there may today be grounds in social policy for allowing an
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immunity to Crown servants whilst subjecting the Crown to liability and referred to the decision of the English Court of Appeal in Broom v Morgan [1953] 1 QB 597. His Honour observed that whatever view one takes of the basis of the decision in Broom v Morgan the immunity of a husband from action by his wife there under consideration is the result of their relationship one to another. His Honour expressed the view that as the law stands an immunity of the servant cannot co-exist with a liability of the master. 41 In Cowell v Corrective Services Commission of New South Wales & Anor (1988) 13 NSWLR 714 at 733 Clarke J referred to the judgment of Windeyer J in Parker and said: "If there is no right to take action against the agent in respect of the conduct complained of then it seems to me to follow as a matter of principle that there is no right to take action against the principal in respect of that conduct. Broom should be regarded as anomalous or, at least, confined to the facts then under consideration. In Parker, Windeyer J treated the case as depending on the particular relationship of husband and wife and irrelevant to a consideration of the immunity enjoyed by members of the armed forces (at 303) and the later decision of the High Court in Groves v Commonwealth of Australia (1982) 150 CLR 113 did not touch upon this question. In the present case there never was a liability in the gaol governor in respect of the detention of the appellant and accordingly no basis for holding his principal liable for his acts. To conclude otherwise would be to undermine the very foundation of the traditional principle of vicarious liability." 42 King CJ also referred to the judgment of Windeyer J in Parker in the subsequent decision of the Full Court of the Supreme Court of South Australia in De Bruyn v South Australia (1990) 54 SASR 231 at 235, where his Honour said: "It follows from the above that if s 29(1) of the Highways Act operates, in a factual situation to which it applies, to prevent a matter or thing which would otherwise be tortuous from amounting to a tort if done by the Commissioner or any inspector or other officer in good faith for the purpose of executing the Act, the Crown, and therefore the defendant State of South Australia, is not vicariously liable for such matter or thing. If the law does not impose liability in tort upon the
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person perpetrating the act or omission said to constitute the tort, the State is not liable. This follows from the principles considered by Windeyer J in Parker v Commonwealth(1965) 112 CLR 295 at 300 – 302." 43 There is nothing in the construction of s 124 which requires a different approach in this case. The effect of s 114 is that there is no liability in Mr Tong for his negligence and therefore no liability in the defendant. 44 For these reasons, the plaintiff's action will be dismissed.
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