Commonwealth v Cocks

[1966] HCA 27

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan and Taylor JJ.

THE COMMONWEALTH v. COCKS

(1966) 115 CLR 413

3 May 1966

Master and Servant

Master and Servant—Vicarious liability of master for tort of servant—Course of employment—Servant travelling in own car from old to new place of employment—Permission so to travel given by master—Commonwealth Public Service—Public Service Regulations (Cth), regs. 119, 120—General Orders for the Public Service, sub-s. (H), 10/H/1.

Decision

May 3.
THE COURT delivered the following written judgment: -
The only question in this appeal is whether in the circumstances disclosed by the evidence the appellant is liable for the negligence of the respondent's husband who was the driver of the vehicle in which she was travelling as a passenger at the time when she sustained the injuries complained of in the action. (at p415)

2. It appears that her husband, who was a Commonwealth public servant employed at Canberra, was notified that it had been decided to transfer him to a post in Melbourne, that his duties in Canberra would terminate on 6th October 1961 and that he would be required to present himself for duty on Monday 9th October 1961. Regulation 119 of the Public Service Regulations provides that when officers are transferred in circumstances such as presented themselves in this case the actual cost of conveyance of such officers, together with their wives and children, and of removal of furniture and household effects, subject to the provisions of reg. 120, shall be paid by the Department. Regulation 120 merely provides some limitation on the Commonwealth's liability to meet the cost of the removal of furniture and household effects. However, the respondent's husband was possessed of a motor vehicle and since he wished to travel to Melbourne in it he made an application pursuant to sub-s. (H) of the General Orders for the Public Service. By the relevant provisions of these orders it is provided that an officer or employee who is entitled on transfer to payment of fares for himself and his family may be granted the necessary permission to travel by his own private conveyance provided that application in the matter is made to the Chief Officer prior to the journey being undertaken and that the Chief Officer is satisfied that the use of other than the regular means of conveyance will not be to the disadvantage of the Department by reason of excess time on the journey or otherwise. Upon permission being granted an officer becomes entitled to a prescribed mileage rate for the journey - in this case 6 1/2d. per mile, and in addition, upon completion of the journey, to a travelling allowance but not to any greater sum on that account than the amount to which he would have been entitled if he had travelled by the normal means of surface travel. Further, he becomes entitled to be paid an additional mileage allowance if any member or members of his family are carried on the journey. He also is entitled to be paid his salary, except in so far as the time occupied by the journey is in excess of that which would have been occupied by travelling by normal surface transport. (at p416)

3. It remains to be said that the respondent's husband made the necessary application for permission to use his own vehicle to travel from Canberra to Melbourne on 8th October 1961, that approval was given to his application and that whilst the husband was driving the vehicle in the course of the journey it collided with the side of a bridge and the respondent was injured. No question is raised upon this appeal concerning the learned trial judge's finding that the respondent's injuries were caused by her husband's negligence. The sole question is whether in the circumstances it can be said that the respondent's husband was driving the vehicle in the course of his employment by the appellant. (at p416)

4. At the trial three grounds for asserting the affirmative of this proposition were advanced. Two of these grounds were rejected by the learned trial judge and are not again advanced upon this appeal. But the third ground, which rests upon the fact that he had applied for and received permission to use his own vehicle for the purpose of making the journey, was in his Honour's opinion sufficient to support the respondent's contention on this aspect of the case. In the course of his reasons his Honour said: "Mr. Cocks was a servant of the Commonwealth. In the course of that service he was required by his employer to proceed from Canberra to Melbourne. He had, no doubt, the choice of going there by road in his own car or by air and with his employer's permission chose to go by road. No doubt it suited his own purposes to travel by car but he was also making the journey for his employer's purposes and it had agreed that he should make it in his own car and at its expense. In these circumstances it seems to me that it can properly be said that in travelling to Melbourne he was acting in the course of his employment. He was doing something incidental to the performance of the duties which he was required to perform and in my opinion the plaintiff's cause of action is made out". With respect to his Honour we do not think that this represents a correct analysis of the position. Subject to one qualification Mr. Cocks was perfectly free, if he wished, to use his own vehicle for the purpose of his journey to Melbourne. The qualification is that, in some circumstances, a journey by car from Canberra to Melbourne instead of by a "regular" means of conveyance may have interfered with the performance of his official duties and, in such circumstances, it would be necessary to obtain permission to make the trip by car. This was not a possibility in the present case as Mr. Cocks proposed to make the journey during the week-end. Nevertheless, the terms of the Order contemplate such a possibility and stipulate that permission may be given "if the Chief Officer is satisfied that the use of other than regular means of conveyance will not be to the disadvantage of the Department by reason of excess time on the journey or otherwise". In our view, the giving of permission pursuant to this Order can in no way be regarded as authorizing an officer to use, or, for that matter, to drive, his vehicle on behalf of the Commonwealth; its effect is, in the first place, merely to permit the journey to be made by the officer in his own vehicle instead of by regular means of transport and, secondly, since the Commonwealth would thereby be relieved of the cost of the conveyance of the officer and his wife by other forms of transport, to entitle him to the payment of the mileage and other allowances for which the Order makes provision. In these circumstances a permission given under the terms of the Order falls far short of an authority to use or drive his vehicle as a servant or agent of the Commonwealth and in no way enlarges the scope of his employment as an officer so as to comprehend the driving of a motor vehicle. That being so the appeal should, in our opinion, be allowed. (at p417)

Orders

Appeal allowed with costs. Judgment for the plaintiff set aside and in lieu thereof enter judgment for defendant, with costs.