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Broad v Parish

Broad v Parish

Case [1941] HCA 25 8 September 1941

Causation

Duty of Care

Negligence

Statutory Construction

Appeal

Negligence & Tort

Statutory Interpretation

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64 CLR 588

PARISH AND OTHERS

RESPONDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF InsuranceCompulsory insurance of motor car-Accident while car driven by

uninsured person-Car held by that person under hire-purchase agreement- "Permit" to use car-Traffic Act 1925 (Tas.) (16 Geo. v. No. 38-26 Geo. V. SYDNEY,

No. 83), secs. 3 (1), 63 (1), (2). July 29; Sept. 8.

Sec. 63 of the Traffic Act 1925 (Tas.) provides as follows (1) Notwith- standing anything in this Act it shall not be lawful for any person use, or to cause or permit any other person to use, a motor vehicle unless there is in force in relation to the use of that vehicle by that person or that other person, as the case may be, such a policy of insurance as complies with the provisions of this Act. (2) For the purpose of this Part and of every policy of insurance thereunder, every person other than the owner who is at any time in charge of a motor vehicle, with the authority or acquiescence of the owner, shall be deemed to be the agent of the owner, and to be acting within the scope of his authority in relation to such motor vehicle; and any such person is in this Part called an 'agent.' "

Held, by Rich A.C.J., Starke and Williams JJ. (McTiernan J. dissenting), that the driving of a motor car by the hirer thereof under a hire-purchase agreement is a use "permitted" by the other party to the agreement within the meaning of sec. 63 (1) of the Traffic Act 1925-1935 (Tas.) so as to render such other party liable to an action for damages resulting from the breach of the duty imposed by sec. 63 (1).

Decision of the Supreme Court of Tasmania (Clark J.) reversed.

64 CLR 589

APPEAL from the Supreme Court of Tasmania.

In March 1938 an agreement was made between Perpetual Insur- ance and Securities Ltd., hereinafter referred to as the company, and Maxwell James Parish, for the hire and purchase of a motor car. It was in common form. Parish was entitled to the use of the car, paying rent or hire therefor, for the term mentioned in the agree- ment, unless sooner determined pursuant to the terms of the agree- ment. Subject to the payment of all sums due under the agreement he was also given an option at any time during the hiring to purchase the motor car. The agreement contained a stipulation that Parish should throughout the term of the agreement comply in all respects with the requirements of the Traffic Acts and Regulations. It also provided that the company should be entitled to insure for its own benefit the motor car against damage by fire or accident, and that Parish should pay on demand all premiums for keeping the insurance on foot.

The Traffic Act 1925 (Tas.) provides, by sec. 3, that unless the con- trary intention appears 'owner," when used in reference to a motor…

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 Broad v Parish

Details

AGLC: Broad v Parish [1941] HCA 25
Case: [1941] HCA 25
Decision Date: 8 September 1941

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Tasmania. The appellant, Kathleen Isabel Broad, sought damages for the death of her husband, Bertie James Broad, who was killed in a collision with a motor car driven by Maxwell James Parish. The action was brought against Parish for negligence and against Perpetual Insurance and Securities Ltd. (the company) for breach of statutory duty under section 63 of the *Traffic Act 1925* (Tas.). The company had entered into a hire-purchase agreement with Parish for the motor car involved in the accident.

The legal issues before the High Court were whether the company had "permitted" Parish to use the motor vehicle within the meaning of section 63(1) of the *Traffic Act 1925* (Tas.), thereby rendering it liable for damages due to the absence of compulsory insurance, and whether the deceased had been guilty of contributory negligence. Section 63(1) of the Act stipulated that it was unlawful to use or permit the use of a motor vehicle unless a valid insurance policy was in force. Section 63(2) further deemed any person in charge of a motor vehicle with the owner's authority or acquiescence to be the owner's agent.

A majority of the High Court, comprising Rich A.C.J., Starke and Williams JJ., held that the company had permitted Parish to use the motor car. They reasoned that the hire-purchase agreement, by granting Parish the right to use the vehicle for the duration of the agreement, constituted a general permission to use the car. This permission was granted by the company, which remained the owner of the vehicle, and was not negated by the fact that Parish had possession and a contractual right to use the car. The Court found that the company's right to terminate the agreement due to Parish's breaches did not alter the fact that, at the time of the accident, Parish was using the car under the terms of the agreement, which implied permission. The Court also found that the deceased was not guilty of contributory negligence, as he was entitled to assume that other drivers would comply with traffic regulations.

Consequently, the High Court allowed the appeal, setting aside the judgment in favour of the company and entering judgment for the appellant against the company for £1,400. The cross-appeal by the company regarding the refusal to amend its defence to include contributory negligence was dismissed. McTiernan J. dissented, finding that the hire-purchase agreement did not constitute a "permission" to use the vehicle in the sense contemplated by the Act, as the company had effectively divested itself of control over the car's use.

Orders