Broad v Parish

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.