IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA
DOYLE CJ, NYLAND AND MILLHOUSE JJ
CATCHWORDS
Torts - negligence - proof of negligence - sufficiency of evidence - first respondent injured in plane crash - pilot killed - whether sufficient evidence to find pilot negligent - pilot failed to take account of possible windshear which a reasonably competent pilot would have anticipated - finding of trial judge upheld.
Negligence - liability for others' negligence - whether trial judge correct in holding owner of plane vicariously liable for negligent flying of pilot - whether the principle of Launchbury v Morgans should be accepted and applied - whether principle of vicarious liability ought to be extended and applied generally or to be confined to motor vehcile cases - the principle of Launchbury v Morgans should not be extended beyond the use of motor vehicles - finding that first appellant liable for pilot's negligence to be set aside - appeal allowed.
Damages - future economic loss - cross appeal with respect to award of $100,000 compensation to first respondent for loss of future earning capacity - all contingencies sufficiently taken into account by trial judge - finding of trial judge upheld.
Non-economic loss - allowance of $50,000 for past and future non-economic loss for first respondent increased to $60,000.
Nervous shock or mental disorder - common law - whether trial judge erred in failing to distinguish between parents' mental consequences of shock of seeing injured son immediately after accided as opposed to the problems caused by later observation of son's disability - error by trial judge - award set aside and damages reduced.
Future medical expenses - whether trial judge erred in failing to allow damages for costs of possible future surgery - insufficient evidence on which to make assessment - finding of trial judge upheld.
Procedure - costs - second appellant joined in proceedings - whether trial judge erred in making order that first appellant indemnify the respondents with respect to order for costs made in favour of second appellant - nothing in conduct of the first appellant to require him to bear costs of joinder - no grounds for making order - para 3 of order for costs set aside.
Interest - By cross-appeal the respondents contended that trial judge erred in declining to award interest on monies paid on account of special damages by second and third respondents - Sum of $1546 interest to be included in the award to one or other of the second or third respondents.
Jaensch v Coffey (1984) 155 CLR 549; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, applied. Launchbury v Morgans [1973] AC 127; Ormrod v Crosville Motor Services Ltd [1953] 1 All ER 711; Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41; Soblusky v Egan (1960) 103 CLR 215; Kondis v State Transport Authority (1984) 154 CLR 672; Preston v Dowell (1987) 45 SASR 111; Mortess v Fry [1928] 45 SASR 60; Gosson Industries Pty Ltd v Jordan [1964] NSWR 687; Doyle v Pick [1965] WAR 95; Kirth v Tyrrell [1971] Qd R 453; Milkovits v Federal Capital Press of Australia Pty Ltd (1972) 20 FLR
311; Elfah Pty Ltd v Sabbadina (1994) 19 MVR 81; Harris v Van Spijk (1986) 1 NZLR 275; Pawlak v Doucette [1985] 2 WWR 588; Rand v Bomac Construction Ltd
(1988) 55 DLR (4th) 467, discussed.
ADELAIDE, 14-15 April 1998 (hearing), 26 June 1998 (decision)
#DATE 26:6:1998
APPEARANCES
Appellants:
Counsel: Mr D M Quick QC with Mr A W Nicolas
Solicitors: Thomson Playford
Respondents:
Counsel: Mr D W Smith with Mr M B Manetta
Solicitors: Johnston Withers
Order: appeal allowed.
DOYLE CJ AND NYLAND J
This is an appeal and cross-appeal against a decision of a District Court judge delivered on 17 October 1997. There is also an appeal against part of the order for costs made on 24 October 1997.
Negligence
On 29 July 1990 the plaintiff, Travis Scott, then aged 11 years, was a passenger in a light aeroplane owned by his uncle, Geoffrey Davis and flown by a pilot, Michael Bradford. The plane crashed and Mr Bradford was killed. Travis sustained serious injuries. His parents, Geoffrey and Gaynor Scott, witnessed the accident. They claimed damages for nervous shock.
Mr Davis is the manager of a family engineering business but is also a qualified pilot with a particular interest in restoring and flying veteran and vintage aircraft. On the date of the accident he owned about five such aeroplanes including an Aeronca 65 HB High Wing Monoplane, the plane that crashed. The Aeronca was described as an easy plane to fly and was often used for training new pilots. It is, however, a plane of limited performance. It was not designed for aerobatics. Its top speed is limited to 112 knots. It can fly at surprisingly low speeds and, subject to not stalling the plane, is very manoeuvrable at slow speeds.
Mr Davis owns a property in the Barossa Valley on Jacobs Creek. He had built a large shed there for a hangar as well as a nearby airstrip. Mr Davis lived on the property and regularly flew in the vicinity. Mr Davis first met Mr Bradford in about 1976 when Mr Davis was involved in a project to repair a damaged wing on a Douglas DC3. When planes are built or restored, each step in the construction or restoration must be supervised by a licensed aircraft mechanical engineer and, on completion, certified as being of appropriate standard. Mr Bradford was a licensed aircraft mechanical engineer with many years of experience, particularly dealing with fabric covered "rag and bone" planes. He was the engineer who had the licence to sign for the rework on the DC3. They met again in 1988 when Mr Bradford was involved in the certification of a Steerman aircraft belonging to Mr Davis.
There was a subsequent occasion when Mr Bradford rang Mr Davis and asked whether he could come up to the property. At the time, Mr Davis was installing a stall warning device in the Aeronca. He was working on it when Mr Bradford arrived. They talked about aeroplanes. Mr Bradford told Mr Davis that in the United States he had actually rebuilt an 85 HP Aeronca. The two of them went up in the plane together, initially with Mr Bradford in the back. Mr Davis flew the aircraft from the front and then he let Mr Bradford fly the plane for about five or ten minutes. Mr Davis was reasonably impressed with the manner of Mr Bradford's flying. In the course of the flight, they stalled the aeroplane two or three times to test the stall warning device, which worked. Mr Bradford also stalled the plane from the back while flying. They did some "touch and go" procedures, and then they landed and changed seats, with Mr Bradford in the front command seat. They flew for a short period and subsequently Mr Bradford took the plane up by himself with Mr Davis watching. Mr Davis formed the opinion that Mr Bradford was a reasonable aviator with the knowledge of how to fly this type of aeroplane. On the first occasion that they landed, Mr Davis explained to Mr Bradford some of the peculiarities of this particular landing area. They included problems with windshear.
About three weeks later, Mr Bradford came up to the property with a friend. He asked Mr Davis if he could take the friend for a ride. Mr Bradford flew the aeroplane for about an hour. Mr Davis saw Mr Bradford when he took off. He did a couple of circuits around the airfield. Mr Davis observed nothing to call into question Mr Bradford's competence as a pilot.
Mr Bradford came up to the property about a month later when Mr Davis was dealing with another aeroplane called a Stomp. Mr Bradford had another flight in the Aeronca. The next contact occurred when Mr Bradford rang Mr Davis to tell him he was involved in supervising another pilot, called Fraser, with respect to the certification of an aircraft called a Corby Starlet, which they had built together. It was a small, fast, low wing monoplane and was white in colour. Mr Davis was told that they planned to do some tests on the Corby Starlet. Mr Bradford wanted to fly the Aeronca to observe the test and measure what the Corby Starlet could do. On 29 July 1990, Mr Fraser flew up to the Davis property in the Corby Starlet and Mr Bradford drove. This visit coincided with the 21 st birthday party of the Davis' daughter. Mrs Davis is the sister of Mr Scott, so the Scotts were also invited to the family celebration.
The Scotts arrived after Mr Bradford and Mr Fraser. They first stopped at the hangar, where Mr Davis was working on the Stomp. The Scotts had their two boys with them, that is, Travis and his brother. The boys were at the hangar. They were pretty excited and bouncing around. The Scotts eventually left Mr Davis at the hangar and returned to the house, where they socialised with Mrs Davis and the other guests and had lunch.
Travis was a lad who was interested in planes but had never flown. Mr Bradford subsequently took Travis up with him in the Aeronca. Travis was in the rear seat. In his reasons for judgment the judge described what happened thereafter as follows:
"The Aeronca then returned to the northern end of the strip and took off towards the south. I pause to note that the day was fine, with some cloud and with a light wind (variously estimated) at 6 to 16 knots) blowing from the south.
Watchers on the ground, by the hangar, briefly lost sight of the Aeronca as it crested the rise in the strip and then saw it climbing into the air. Everything looked normal. It turned and flew back to the north, initially parallel to the strip and, later, veering to the east. The flight path was, variously, said to have been over the strip, between the strip and the hangar, or even east of the hangar.
It is plain that it is very difficult to estimate the height of a plane in feet. All witnesses agreed with that. The person most familiar with the area, Mr. Davis, hazarded the estimate that it was about three times the height of certain trees that he estimated at 150 feet high. I place no detailed reliance on that estimate.
The Aeronca continued until it passed over Jacobs Creek, when it began to turn to the west. Watchers from near the hangar saw nothing remarkable to this stage. The preponderance of evidence does not suggest that the turn was particularly steep. Part way through that turn, the left wing dropped, the nose swung down and the plane almost instantaneously headed down in a vertical, anti clockwise spiral. It vanished behind the trees on the creek line. On the way down, its wings (or one of them) and/or the undercarriage appear to have brushed tree branches.
The witnesses near the hangar were not all paying much attention; some claim to have seen all, while others only caught intermittent glimpses. The common theme is that, when the Aeronca went out of control, it did so rapidly and violently. Some witnesses believe that it completed three, or even three and a half, complete rotations as it dived to the ground. Another describes three rotations in a flat spin, rather than a dive. Another describes only one half turn. The plane went in nose first and was found upright, on its nose, with its upper side facing back to the south and its undercarriage to the north.
Mr Bradford was killed instantly - and so cannot tell us what happened. The plaintiff has a limited memory. He thought that everything was normal until the pilot said words to the effect: 'Shit, we're going in'. Those words were out of the blue and were immediately followed by the crash."
The dispute at trial was whether the crash had been caused by pilot error as opposed to unavoidable windshear. A number of witnesses, with varying degrees of flying knowledge, gave evidence to the effect that the plane appeared to be flying at a slow speed and lower than it should have been.
Mr Davis's airstrip was, however, situated in an area in which the topography was conducive to windshear. The learned trial judge described windshear in the following way:
"Prevailing meteorological conditions and local landforms and obstructions can cause various sorts of turbulence in the air flow at a particular location. At one extreme, up and down drafts associated with thunder clouds can be so violent as to toss large planes up and down for hundreds of feet. Such a phenomenon is called windshear. At a lesser level, windshear may be generated by the flow of wind over buildings, hills, or trees. This sort of windshear is not likely to affect a large plane, or one with the momentum of significant speed. It may affect a slow, light plane.
It is invisible to the naked eye, although a competent pilot should be alert to the sorts of situations in which it is more likely than usual to occur. If it occurs, it can be very sudden in its effect. One witness spoke of flying a Cessna on its final approach to land at Parafield when it was literally flipped upside down. His only warning was that he noticed the tail of a plane landing ahead of him kick to one side, and he saw a wind sock suddenly swing through 180 degrees. It is not a consistent, predictable phenomenon, as this example shows. In the example, it barely affected one plane, but dramatically affected another passing through the same spot only minutes later."
The judge considered the issue of windshear and found that the only evidence of violent windshear was the stalling of the aircraft in flight. He held that the crash was probably due to negligence on the part of the pilot rather than to unavoidable windshear.
The appellant argued that this finding was pure conjecture, that there was circumstantial evidence which suggested that there was windshear which was operative, and that was an equally competing hypothesis with pilot error. This included the evidence as to the place and topography of the area, the evidence that wind conditions on the day in question were conducive to windshear, the fact that the aircraft went out of control rapidly and violently and that the crash was in the immediate vicinity of a likely source of windshear.
Mr Schwerdt, an expert witness, described the phenomenon of windshear. He related it to the geographic location of the accident and considered that it was possible that the aircraft was affected by windshear on the day in question. He also said that, depending on the severity of the shear, the pilot would have little, if any, warning that the plane was about to stall and it would commence a spin or spiral dive in a sharp nose-down attitude. He thought a pilot without aerobatic training would not be able to recover. Nevertheless, he considered that a prudent pilot would take into account the fact that the topography might cause some turbulence and be prepared to cope with the situation.
The judge found that it was possible that violent windshear precipitated a stall from which an ordinary reasonably competent pilot would have found it at least very difficult to escape. He went on to say:
"In my view, the fact, if it be a fact, that pilots commonly become complacent does not mean that they are free from negligence in so doing. Mr. Schwerdt makes a good point that car drivers do the same; accidents are all too frequent. Driving without due care is not to be excused because it is common.
I am satisfied by Mr. Schwerdt that a competent pilot should have recognised from the topography, obstacles and meteorological conditions on that day that windshear over the Jacobs Creek area was a possibility. Mr. Davis tells me that he specifically mentioned this to Mr. Mr Bradford, who landed over the creek on a number of occasions that very afternoon, though I accept that windshear or turbulence are not constant."
Mr Downing of the Bureau of Air Safety Investigation provided a report (P18). He concluded that the pilot stalled the aircraft at a height insufficient for recovery. His report does not say anything about the problem of windshear. In evidence, Mr Downing dismissed windshear as a material causative element in the crash, whereas Mr Schwerdt was convinced that windshear was a factor but ranked it as one of the two possibilities. Of these two witnesses, the judge appears to have been more impressed by Mr Schwerdt than Mr Downing.
The judge rejected the suggestion that Mr Bradford had deliberately embarked on a dangerous aerobatically steep turn immediately before he lost control. He found that Mr Bradford lost control unintentionally. There was, however, a considerable body of evidence that the plane was flying very slowly, that it banked rather steeply and was at a very low altitude. The judge found that the plane was flying at a slow speed. In so doing, he placed considerable reliance on the evidence of a Mr Rufenacht. Mr Rufenacht was a person with considerable flying experience. On this particular day, he was visiting the property of a Mr Koch, a neighbour of the Davis', where he was flying a radio controlled model glider. He saw the flying activities in the course of the day. He saw the Aeronca go into its spin and described it as being a "bit slow". Mr Koch was with Mr Rufenacht. He, at that time, was only 13 years old, but he thought the plane was "flying very slow".
The judge found that turbulence was possible on the lee or northern side in the vicinity of the crash scene but Mr Fraser, who was flying the Corby Starlet that day, said that he had not experienced any turbulence and -
"The only turbulence that might have occurred there would be aerographic close to the ground: a down wash from the trees, behind the trees. And the mechanism to deal with that is simply to clear the trees by a decent interval." (Tr 661).
He agreed that a prudent pilot in such a situation would leave a decent interval between himself and the trees.
The judge carefully considered all of the evidence relating to windshear and accepted that it was a possible cause of the accident. There was, however, ample evidence to support the finding that Mr Bradford was flying very slowly. Mr Schwerdt considered a prudent pilot would cope with the problem of windshear by keeping his airspeed up. The judge criticised Mr Bradford for flying at a lower than normal limit of speed and found that this would have increased his vulnerability to windshear. The judge also found that Mr Bradford had no need to turn in a place immediately to the lee side of the trees which might generate such windshear.
The judge concluded that windshear was a less probable explanation for the accident than the plane flying too slowly as it turned, and stalling as a result of pilot error. He said that it may have been a simple error of judgment in flying too slowly which caused the plane to stall on the turn, or it may have been a speed within the normally safe range but too slow to deal with the unexpected incidence of windshear. If it were the latter situation it was more probably the result of failing to take sufficient account of possible windshear than the result of such overwhelming windshear that a reasonable pilot could not be expected either to anticipate or cope with it. He finally concluded that Mr Bradford was negligent and his negligence caused the crash. We consider there was sufficient evidence to support the finding of negligence on the balance of probabilities and we would not interfere with that finding.
Vicarious liability of Mr Davis - the Judge's decision
The judge found that Mr Davis was vicariously liable for the negligence of the pilot, Mr Bradford.
The judge made a number of findings of fact relevant to this issue. The judge found that during the afternoon Mr Scott, the plaintiff's father, asked Mr Davis whether the plaintiff and another boy could have a ride in an aircraft. The request was no more specific than that. He found that Mr Davis agreed to that request, and that Mr Davis asked his wife to ask Mr Bradford to take the boys for a flight. The aircraft to be used belonged to Mr Davis, it was his landing strip, and the judge found that he had general control over the use to be made of the aircraft. There was no radio contact between the aircraft and the ground. The judge found that in making the request of Mr Bradford, Mr Davis was motivated by nothing more than "the satisfaction of being a kind host in giving pleasure to his guests".
The judge also found that when Mr Bradford took off with the plaintiff on board he did so pursuant to the request from Mr Davis. He found that Mr Bradford had completed the flight for which he had borrowed the plane and would not "... have been in the air if he had not been complying with Mr Davis' request".
The judge referred to a number of English cases dealing with the vicarious liability of the owner of a motor vehicle for the negligence of a driver. He referred in particular to the decision of the House of Lords in Launchbury v Morgans [1] . The judge appears to have accepted and to have applied the law as stated by Lord Cross in that case. That was to the effect that the owner of a vehicle will be liable for the negligence of the driver if the driver was driving as the result of a request by the owner to the driver, and if there was some benefit to the owner. That benefit need not be pursuant to a contract.
The judge considered that this was a common law principle, and was not restricted in its application to motor cars. Applying that principle, he found that Mr Davis was vicariously liable for the negligence of Mr Bradford. The judge relied upon the request made by Mr Davis to Mr Bradford, and the benefit conferred on Mr Davis, the benefit being the discharge of the desire of Mr Davis to gratify his guests. The judge may have relied as well upon the fact that Mr Bradford had no particular interest in the flight in question, the flight that he had wanted to make having been completed.
The defendants' contentions
The defendants do not challenge the judge's findings of fact. The defendants contend that the English cases relied upon by the judge extend the principle of vicarious liability beyond limits recognised by the High Court. They contend that the principle applied by the House of Lords in Morgans (supra) should not be applied in Australia. As to the latter point, the submission for the defendants was that a principle of vicarious liability which rests upon a mere request by the owner of a chattel, and such an exiguous interest or benefit as was present here, is a principle with a dangerously wide and uncertain reach. The example was given of a host who, while entertaining friends for lunch, asks one of the guests to light a gas barbecue belonging to the host, the guest doing so negligently and causing injury to others as a result of an explosion. Is the host in such a case to be vicariously liable for the injury caused by the careless guest? It is not difficult to think of other examples.
English authority
It is convenient to begin with the position in England. First, because the judge followed English cases. Secondly, because in Morgans the House of Lords has fairly recently stated the law authoritatively for that country. It is also the case that a number of English decisions have considered the vicarious liability of the owner of a motor vehicle for the negligence of a driver, and have fairly consistently extended the reach of the law on that topic.
In Morgans (supra) the facts were as follows. The motor car in question was owned by Mrs Morgans. It was used by her and by her husband. It was the family car. On the day in question the husband had taken it to work as he usually did. He went drinking after work with a number of friends. He realised that he was not in a state to drive safely, because of the liquor that he had consumed, and asked Mr Caulfield to drive. While Mr Caulfield was driving, with Mr Morgans in the car but much affected by liquor, an accident occurred as a result of Mr Caulfield's negligent driving. Mr Morgans was killed. The other passengers in the car claimed damages for injuries received in the accident. Mrs Morgans was held personally liable for those damages. The liability was vicarious. This appears to have been on two broad bases. First, that the owner of a car is liable for the use of it by someone whom the owner has permitted to use the car, unless the owner has no interest or concern in the purpose of the use. In the case in question it was said that Mrs Morgans had an interest in the car being used to take her husband to work and to get him home safely. The second basis for liability was that if spouses jointly own a family car, one of the owners is vicariously responsible for any damage done by the other spouse when driving it. In this case, the request by Mr Morgans that Mr Caulfield drive the vehicle seems to have been a sufficient link to Mr Morgans, and then Mrs Morgans was responsible as the joint owner for the damage done by her husband as another joint owner.
The House of Lords rejected this approach and allowed the wife's appeal.
To identify the principles that their Lordships adopted, it will suffice to refer to some brief passages from their speeches. Lord Wilberforce said (at 135):
"in order to fix vicarious liability upon the owner of a car in such a case as the present it must be shown that the driver was using it for the owner's purposes, under delegation of a task or duty. ... The owner ought to pay ... because he has authorised the act, or requested it, or because the actor is carrying out a task or duty delegated, or because he is in control of the actor's conduct. He ought not to pay (on accepted rules) if he has no control over the actor, has not authorised or requested the act, or if the actor is acting wholly for his own purposes."
He said that the understanding between Mr and Mrs Morgans that Mr Morgans would not drive if affected by liquor did not amount to any authority by her to drive on her behalf or any delegation by her of the task of driving. Lord Pearson said (at 140):
"If the car is being driven by a servant of the owner in the course of the employment or by an agent of the owner in the course of the agency, the owner is responsible for negligence in the driving. The making of the journey is a delegated duty or task undertaken by the servant or agent in pursuance of an order or instruction or request from the owner and for the purposes of the owner. For the creation of the agency relationship it is not necessary that there should be a legally binding contract of agency, but it is necessary that there should be an instruction or request from the owner and an undertaking of the duty or task by the agent. Also the fact that the journey is undertaken partly for purposes of the agent as well as for the purposes of the owner does not negative the creation of the agency relationship."
Lord Cross said (at 144):
"The owner of the chattel will be liable if the user of it was using it as his servant or his agent ... the user need not be in pursuance of a contract. It is enough if the chattel is being used at the relevant time in pursuance of a request made by the owner to which the user has acceded. In deciding whether or not the user was or was not the agent of the owner it may no doubt be relevant to consider whether the owner had any interest in the chattel being used for the purpose for which it was being used."
Lord Salmon spoke to a like effect (at 149).
If these are the principles to be applied, the decision by the judge appears to be correct. Mr Bradford had completed the flight that he wished to make. He undertook a further flight, in Mr Davis's aircraft, at the request of Mr Davis. Mr Bradford had no particular interest in the flight, whereas by undertaking the flight Mr Bradford satisfied the wish of Mr Davis to give pleasure to his guests.
Commentaries on the law
A consideration of the cases in this area of the law, and of the relevant principles, supports the following opinion expressed by Atiyah in Vicarious Liability in the Law of Torts [2] (at 99):
"There is no more settled doctrine in the law of tort than that a master is liable for the torts of a servant committed in the course of his employment, but there is no more controverted proposition than that a principal is generally liable for the torts of an agent committed within the scope of his authority. While there can be no doubt that a principal is in some circumstances liable for the torts of a person who is not a servant it is still a question of the greatest difficulty whether these cases are illustrations of a general rule or whether they remain isolated cases, explicable perhaps as historical anachronisms or as special rules designed to meet special situations, or whether, indeed, they can be explained on other grounds altogether not assignable to any head of vicarious liability."
Atiyah goes on to refer to a number of writings on the topic. He identifies three main theories of liability for agents who are not servants. The third of those (at 101) is that
"while there is no general principle of liability for agents there are certain exceptional cases, in particular where one person delegates to another the function of representing him in the course of a transaction of a consensual (but not necessarily contractual) nature."
That appears to be the view that he favours.
In a chapter devoted to the liability of the owner of a vehicle for the negligence of the driver of a vehicle, he considers a number of the relevant cases. Some of these are based upon a test that looks to the control exerted by the owner over the driver. He identifies certain difficulties with this approach and then says (at 128):
"These difficulties have recently led to a shift in the basis of the liability in this kind of case from the owner's right of control to the principle of agency. It is now clear that the true question in all these cases is whether the driver is driving as the agent of the owner at the time when the negligence occurs."
He treats as decisive the decision in Ormrod v Crosville Motor Services Ltd [3] . He goes on to say (at 129-130):
"In order to find an agency, it is clear that a distinction must be drawn between a mere permission and a command . To give someone permission to drive a car for his own purposes is an entirely different thing from giving him authority to drive it on behalf of the owner for his purposes. Where the owner is present in the vehicle it is obviously not difficult to conclude that, generally speaking, anyone driving the car will be driving as his agent, and in most American courts a strong presumption to this effect is applied. (See, e.g. Beam v Pittsburgh Railways Co [4] , SC Penn; Ross v Roogan [5] .) Where the owner is not present in the vehicle at the relevant time it will often be more difficult to say whether the driver was driving entirely for his own purposes or partly for the owner's purposes."
It can be seen that his discussion anticipates the decision of the House of Lords in Morgans .
The relevant principles are also discussed by Fleming, The Law of Torts [6] . He makes the point (at 413) that typically vicarious liability is an aspect of the relationship of employment, traditionally described in the now outdated terms "master and servant". By way of contrast, when the relationship is that of principal and independent contractor, the principal is not ordinarily responsible for harm caused by the independent contractor in performing the allotted task. He observes that sometimes liability has been attached for the negligence of a person described as an "agent". He refers there to an agent in the sense of a person given the function of representing another person who has requested the performance of a certain transaction. He treats the High Court decision in Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Co-operative Assurance Company of Australia Limited [7] as an instance of that type of vicarious liability. He then refers (at 429-430) to the cases, mainly English, in which an owner has been held liable for the negligence of a driver if the owner retained the right to control the manner of driving. He then says (at 430):
"This extension of vicarious liability has occasionally been rationalised by labelling the driver the owner's 'agent', yet what is authorised here is not the agent's tortious act, but at most his acting on the principal's behalf. An alternative rationale which now appears to enjoy the most support is that the owner 'delegated the task or duty' of driving on his behalf, but this would be true also of independent contractors whose fault is not imputed unless the delegated task is rated inherently dangerous. However, the critical difference between the two cases is that in the first, the mandator furnishes his car, while an independent contractor (such as a hire car driver) would furnish his own. That so much hinges on who owns the car is at least one significant pointer in the direction of insurance."
In this passage Fleming reflects the present state of English authority. He makes the point that it requires a close scrutiny of the purpose of each individual trip. He observes, no doubt accurately, that at the heart of these developments of the law lies a desire to close gaps in the scheme of insurance against the liability of owners for damage caused by the driving of their vehicles. In some places statutory schemes have been developed that have made it unnecessary to extend the law to close gaps. In other places, that has not been so.
Australian authority
We can put to one side vicarious liability for employees (or servants) in the true sense, and for independent contractors. Mr Bradford was neither of these.
We can also put to one side vicarious liability for the negligence of an agent of the type who represents a person in the performance of a transaction with other persons. Fleming (at 414) treats liability in such cases as personal, and not as vicarious. We are not at all sure that that is correct, but that does not matter. That category is exemplified by the decision of the High Court in Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Co-operative Assurance Company of Australia Limited (supra) (" CML "). In CML an assurance company employed R as its canvasser and agent under a written agreement. Under the agreement R agreed, in his work as a canvasser and agent, not to use language that reflected upon the character or integrity of any person or institution. In the course of attempting to obtain assurance business, R made defamatory statements about another assurance company. The issue was the liability of the appellant company for that slander. Gavan Duffy CJ and Starke J rested vicarious liability upon the ability of the "employer" to control and direct R in his canvassing work. Alternatively, liability existed because the slander was committed by R while doing an act of the class that he was employed to do. The judgment of Dixon J, with whom Rich J agreed, has often been cited. He drew the traditional distinction, for the purposes of vicarious liability, between a servant and an independent contractor. He then said (at 48-49):
"But a difficulty arises when the function entrusted is that of representing the person who requests its performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity."
He then went on to say (at 50):
"If the view be right which I have already expressed, that the 'agent' represented the Company in soliciting proposals so that he was acting in right of the Company with its authority, it follows that the Company in confiding to his judgment, within the limits of relevance and of reasonableness, the choice of inducements and arguments, authorized him on its behalf to address to prospective proponents such observations as appeared to him appropriate. The undertaking contained in his contract not to disparage other institutions is not a limitation of his authority but a promise as to the manner of its exercise. In these circumstances, I do not think it is any extension of principle to hold the Company liable for the slanders which he thought proper to include in his apparatus of persuasion.
The wrong committed arose from the mistaken or erroneous manner in which the actual authority committed to him was exercised when acting as a true agent representing his principal in dealing with third persons."
We do not consider that the reasoning in that case can be applied to the present case. CML dealt with a person in a contractual relationship, performing an act within the scope of the contract, and acting in a real sense as a representative of the party said to be vicariously liable. We refer in particular to the concluding paragraph in the extract from the judgment of Dixon J that is set out above.
In the present case there was no contract between Mr Bradford and Mr Davis. Mr Bradford could not be said to be representing Mr Davis, in the way in which R represented CML when soliciting business. Mr Bradford was not an agent in any ordinary sense of the word. The most that one can say is that Mr Bradford voluntarily performed a task at the request of Mr Davis. For those reasons, we consider that the principles stated in CML do not assist the plaintiffs.
Is there some other basis upon which Mr Davis might be liable? One such basis emerges from the decision of the High Court in Soblusky v Egan [8] . Somewhat simplified, the facts are as follows. B was in a possession of a motor vehicle under a hire purchase agreement. B was also the registered owner of the motor vehicle. B made an arrangement with Soblusky, under which Soblusky took possession of the vehicle and began to use it for his own purposes. Soblusky paid the hire instalments due under the agreement that B had originally entered into, and was given receipts for those payments. B did not arrange for Soblusky to become the registered owner. On the day in question L agreed to drive Soblusky and others, including E, to a meeting. All of the passengers contributed to the cost of the petrol. While L was driving the car, and Soblusky was asleep in the car, L negligently drove the vehicle with the result that it crashed. E claimed damages for his injuries. At issue was the liability of Soblusky for the negligence of L.
The judgment of the court (Dixon CJ, Kitto J and Windeyer J), reviewed a number of the cases. Their Honours referred somewhat doubtingly to the trend that was already evident in the English cases. They said (at 229):
"It is no doubt true that the development particularly in England of the branch of the law relating to the responsibility of the owner of a motor vehicle for the negligence of a person driving under his authority or consent has gone far. It is perhaps true also that it is easier to see the direction in which the branch grows than to understand the support it obtains from the main trunk of traditional doctrine governing vicarious responsibility. Perhaps the discovery of the true principle of the decisions will be ex post facto ."
However, their view was (at 229) that "the present case does not involve any new doctrine or any new application of old doctrine". They said (at 231) that the relevant principle was this:
"It means that the owner or bailee being in possession of the vehicle and with full legal authority to direct what is done with it appoints another to do the manual work of managing it and to do this on his behalf in circumstances where he can always assert his power of control. Thus it means in point of law that he is driving by his agent. It appears quite immaterial that Soblusky went to sleep. That meant no more than a complete delegation to his agent during his unconsciousness. The principle of the cases cited is simply that the management of the vehicle is done by the hands of another and is in fact and law subject to direction and control. This therefore must be regarded as an obvious case."
They regarded the case as one in which the owner was in possession of the vehicle, was present and had full authority to control the use of the vehicle, although not attempting to exercise that control at the particular moment. They treated that as a clear case for vicarious liability. The possibility of a wider view, that taken in the English cases, was left for another day.
As we understand the decision in Soblusky v Egan (supra), it would support the imposition of vicarious liability only in a case in which the owner of the vehicle in question was in the vehicle and had authority and the capacity, actual or potential, to exercise control over the manner in which the vehicle was driven, cf Preston v Dowell [9] . In that respect, the decision is distinguishable from the present case.
While the decision in Soblusky v Egan does not exclude a wider basis for vicarious liability, the caution that the court showed there indicates that one should not too readily conclude that there is a wider basis. In particular, it should be noted that if Morgans is correctly decided, that decision would provide a wider basis for liability. We say that because L was driving a vehicle that was in the legal possession of Soblusky, was doing so at his request and was doing so for a purpose in which Soblusky had a clear interest. Nevertheless, the decision of the High Court is clearly put on a narrower basis.
There is no later decision in point that binds this Court. The issue that faces this Court is conveniently identified, although left unresolved, by Brennan J in an observation that he made in Kondis v State Transport Authority [10] when he said:
"A defendant is liable if he is the owner or bailee of the vehicle, if he appoints the driver to drive it on his behalf and if he is in the vehicle or is otherwise able to assert control over the driver: see Soblusky v Egan (supra) (at 229-231). It is unnecessary to consider whether an owner's or bailee's liability is more extensive than the liability considered in that case: cf Launchbury v Morgans (supra)."
The question now is whether a more extensive liability, consistent with what the House of Lords decided in Morgans , is to be imposed.
There are a number of Australian decisions that adopt the approach taken by the House of Lords in Morgans , or an approach very close to it. We will deal fairly briefly with them. They all involve the use of a motor vehicle.
An early South Australian case is Mortess v Fry [11] . The defendant's brother was visiting the defendant's house. When he was about to leave, the defendant said that he would drive him home in his motor car. The defendant's son offered to drive his uncle home. The defendant said that he would do the driving, but the son persisted. The defendant then agreed to his son doing the driving. As a result of the son's negligent driving, the brother was injured. The defendant was not in the car at the time. He was held liable. The reasoning of the judge was as follows (at 63-64):
"The defendant had undertaken to get his brother home by motor-car. That was the defendant's affair. His undertaking might have been carried out by himself in person, or by another; and it makes no difference to his liability which actually carried it out. The position would have been entirely different if it had been the son who undertook to get his uncle home, and all the defendant did was to allow his son to use his car for the purpose. In that case the affair would have been the son's, he using his father's car for his own purpose."
Not only does that passage illustrate the reasoning of the judge. It also illustrates, in the contrasting example given by the judge, what we regard as the rather unsatisfactory subtlety upon which the decision rests.
Gosson Industries Pty Ltd v Jordan [12] is a decision of the Full Court of the Supreme Court of New South Wales. Accordingly, it is a decision from which this Court should be slow to depart. It is a decision that has been referred to in subsequent cases, with apparent approval. It is not necessary to refer to the facts. The principle upon which the court proceeded sufficiently appears from the following passage (at 688):
"The law in this State has been extended over recent years by the widening of the principle of vicarious liability, with the object of enabling a person suffering loss or damage from negligent driving of motor vehicles to reach the owner of the vehicle and fasten upon him responsibility for the careless conduct of the driver, even if he was himself free from blame. The justice of the case is preserved by investing the latter with a right of indemnity against the driver. Recent authorities have imputed to the owner a fictitious notion of control if, at the material time, the driver had authority, express or implied, to drive on the owner's behalf or at any rate if he allows the vehicle to be driven by another, provided it is being driven wholly or partly on the owner's business or for his purposes: Ormrod v Crosville Motor Services Ltd [13] . This policy of the law, has in New South Wales, been reinforced by the procedural device of treating ownership of a commercial vehicle as prima facie evidence, fit to be left to a jury, that the person driving the vehicle was the servant and agent of the owner and acting within the course of his employment or, to meet the criteria laid down in Ormrod's Case , at least partly for the owner's purposes: Christmas v Nicol Bros Pty Ltd [14] ; Wiseman v Harse [15] ; Christie v Luke [16] ."
In the same year, in Fettke v Bogovic [17] the approach taken in Ormrod was referred to with apparent approval by a judge of this Court (at 125).
Gosson Industries Pty Ltd v Jordan (supra) was referred to as stating the law of New South Wales by the Court of Appeal of New South Wales in Jennings v Hannan [18] .
In Doyle v Pick [19] the plaintiff's car was being driven by R, when it was involved in a collision with a vehicle driven by the defendant. The plaintiff sued for the cost of repairs to his motor car. The judge found that the defendant was 20% to blame, but that R, who had been joined as a third party, was 80% to blame. The issue was whether R's negligence was to be imputed to the plaintiff, and so reduce his damages. It was held that it should be. This was on the basis that at the relevant time R was driving the plaintiff's car at the plaintiff's request, and was driving the plaintiff's daughter to a night class with the intention of then leaving the plaintiff's car at the plaintiff's place of work, whence the plaintiff would drive it to pick up his daughter and take her home. The judge treated R as the plaintiff's agent.
This approach was taken even further in Kirth v Tyrrell [20] . There a woman was a passenger in a car which she jointly owned with her husband. The husband was driving. The car was being driven for a joint "family purpose". The judge held (at 462) that the husband "was performing a service with respect to the joint property partly at the implied request of his wife."
He said that the husband was driving as the wife's agent, and accordingly the damages that she would otherwise have recovered would be reduced for the negligence of her husband.
In Milkovits v Federal Capital Press of Australia Pty Ltd [21] a judge of the Supreme Court of the Australian Capital Territory referred with apparent approval to the law as stated by the Court of Appeal of New South Wales (see above) and to an even wider approach taken by the Court of Appeal (before it was overruled by the House of Lords) in Morgans . The judge said (at 316) that the question of vicarious liability depended upon whether
"at the time in question the car was being used, with the permission of the owner, for a purpose of his. It need not be for his purpose alone, and it is not necessary that he should have proposed, or adverted to, the use of the car for the purpose, or any of the purposes, for which it was being used."
In Elfah Pty Ltd v Sabbadina [22] a judge of the Supreme Court of Victoria applied the approach taken by the House of Lords in Morgans .
The Courts of New Zealand have also taken that approach, although it appears to have been established in that country before the decision of the House of Lords in Morgans : see Harris v Van Spijk [23] .
It can be seen from this brief survey of the cases, that an approach similar to that taken by the House of Lords in Morgans is fairly well entrenched in Australia, in cases dealing with the use of motor vehicles. While the cases are not entirely consistent, we consider that they support the view that the owner of a vehicle is vicariously responsible for the negligence of a driver if the owner has requested the driver to drive the vehicle, and if the vehicle is driven for a purpose in which the owner has an interest.
Conclusions
We do not consider that Soblusky v Egan (supra) stands in the way of the adoption of such an approach. We consider that in that case the High Court was content to decide the case on a narrower basis, and, as we have already said, to leave for another day the question of whether there was a wider basis upon which vicarious liability might be rested.
We also consider that this Court should not now reject an approach which has been adopted in most States, albeit in only one State by a court of appeal.
On the other hand, a striking feature of the cases to which I have referred is the fact that they are confined to the use of motor vehicles. As a matter of logic, it is difficult to limit the approach taken in those cases to motor vehicles. The underlying principle appears to be that if an owner requests another to use the owner's chattel, and the other agrees, and the task is one in which the owner has an interest, the owner will be responsible for damage caused by the negligence of the person using the chattel.
But the development of the law is not always strictly in accord with logic. We consider that if this principle were to be applied generally to chattels, it has the potential to have an unsettling affect on the law. It is by no means easy to predict just where it would take the law. We refer once again to the example, given earlier, of the host who requests a guest to light the gas barbecue.
It appears to us that the Court is confronted with a choice that it must make on an issue of principle, and a principle of some importance.
Fleming in The Law of Torts (supra), states (at 429) that underlying the extension of the scope of the vicarious liability of an owner of a motor vehicle for the negligence of a driver is the "alarming carnage of motor traffic" and a "deliberate judicial policy" of attaching responsibility for damage done by a driver to the owner of a motor car, who is more likely to be insured or more likely to be able to absorb the loss. That observation may well be correct.
We consider that the better approach is to confine the wider approach to vicarious liability to cases involving motor vehicles. It is the use of motor vehicles that gave rise to the wider approach. It is reasonably well settled in that area. Its application has, presumably, been accommodated by insurers and others affected by it. The broad reach of the indemnity available under most forms of compulsory third party insurance probably explains how the wider approach to vicarious liability has been accommodated.
It is, it is true, a relatively small step from motor cars to aircraft. In Pawlak v Doucette [24] , the Supreme Court of British Colombia applied the wider approach to a boat used for water-skiing. In Rand v Bomac Construction Ltd [25] , the Court of Appeal of Saskatchewan appeared prepared to apply the wider approach to an aircraft, although in the end, on the facts, vicarious liability was not made out. Both are forms of conveyance in regular use.
However, accidents involving the use of aircraft have not caused damage on the scale of the damage caused by the use of motor vehicles. The problem of providing compensation for those suffering injury as a result of the use of an aircraft is not as acute. The flying of aircraft is, in contrast to the driving of a motor car, not something able to be done by most members of the community with relatively little training. In our opinion there is not the same pressing need to extend vicarious liability that has presented itself in relation to the use of motor cars.
We consider that the rationale for the wider approach taken in relation to motor cars does not apply in relation to aircraft. For that reason, we are not persuaded that the wider approach should be applied to aircraft. If the wider approach is applied to other forms of conveyance, there seems to be no reason why it should not be applied to chattels generally, and we consider that that development would have an unsettling effect on the law. For those reasons, we consider that the wider approach should not be extended to a new area, even though we acknowledge that as a matter of logic it is capable of extension. Accordingly, we decline to do so.
In our view the appeal succeeds on this point. The finding that Mr Davis was liable for the negligence of Mr Bradford should be set aside.
Nor do we consider that the case is covered by the narrow principle stated in Slobusky v Egan (supra). The piloting of the plane, at the relevant time, was not under the control of Mr Davis nor did he have the ability to assert control.
Damages - Loss of Earning Capacity
The appellant has appealed against the award of $100,000 to compensate Travis for loss of future earning capacity.
There is a cross-appeal by the respondents against the award for future economic loss on the ground that the award is manifestly inadequate. There is also a cross appeal against the award of $50,000 for past and future non-economic loss.
Travis suffered serious injuries in the accident. They included:
* closed head injury.
* chip fracture left supra and orbital ridge (medial)
* left peri-orbital lacerations including full thickness laceration to the upper eyelid.
* abdominal injuries
* fractured right mid shaft humerus
* fractured left ankle (growth plate injury)
* L3-4 chance fracture
Travis was in intensive care for seven days. He underwent a number of surgical procedures. He was discharged from hospital on 1 September 1990. On 20 November 1990 at Memorial Hospital he underwent spinal fusion surgery at L3-4 using screw fixation.
In January 1991 he returned to school in Year 7. In 1992 he went to Urrbrae Agricultural College. The fracture to the left leg was near the growth plate above the ankle. This caused the leg to grow with some bowing. In October, Mr Cundy, an orthopaedic surgeon, performed an epiphyseadeses to the tibia and fibula and also an open wedge osteotomy of the tibia to straighten it. The surgical wound became infected and required protracted treatment. In March 1993, the metal which stabilised the osteotomy was removed but was slow to heal and required protracted treatment. Travis had ongoing treatment with Mr Gardner, a mental health nurse. Despite these problems, Travis completed his schooling in regulation time. At school he trained in various trade subjects. In January 1996, after leaving school, he went into the family plumbing business.
At the date of trial, his principal permanent injuries were the lumbar injury which the judge assessed at 25% loss of whole body and a 10% disability with respect to the left ankle. In making this assessment the judge appears to have relied on the report dated 14 July 1993 of Mr Cundy. He appears, however, to have overlooked Mr Cundy's subsequent report dated 28 January 1996 in which he revised his earlier assessment and re-assessed the permanent injury to the lumbar spine at 35% and the left ankle at 15%.
At trial the respondent was working in the family business as an apprentice plumber and was doing well. The judge found, however, that he was limited in his ability to do some of the heavier work involved in plumbing. He gave the example of trench digging and removing or installing hot water services, working in awkward confined spaces, working on ladders and balancing on frameworks. The judge found that Travis was fortunate in that his family understood his problem and he was protected from many of those difficulties. The judge found, however, that on the open market Travis was restricted and was likely to find it harder to get employment than if he was uninjured. If employed, he would need a certain amount of understanding from both his employer and his workmates. There is no guarantee of a life of work with the family. The judge took into account that in the future there were possibilities for degeneration in his ankle and back. He allowed for the likelihood that in the more distant future Travis would have periods of unemployment and limited employment and that he would be unfit for prolonged heavy work. All his education and training had been to fit him principally for skilled manual work. He had no specific skills (or plans to acquire them) in office, computer or desk work. The judge considered that with reasonable luck he might get through his working career with little loss. As against that, there were many scenarios which would result in protracted unemployment or restricted work.
In assessing the loss of earning capacity at $100,000, the judge indicated that he had allowed for around two or three years of unemployment within a decade, or perhaps six years of unemployment due to early retirement in many years time, or for various periods scattered throughout his working life, or for a degree of restriction in what he could do throughout his working life - or for a combination of all the possibilities.
This was a difficult matter to resolve. If the family business continues there may be little, if any, loss. On the other hand, Travis has significant disabilities. If he were to be thrown on the open labour market, as the judge found, his ability to obtain employment would be severely restricted. At the date of trial, Travis was aged only 18 years. He potentially has many years of working life ahead of him. The judge considered the various competing contingencies when he assessed the future loss at $100,000. Even allowing for the benefit of the advance payment, we do not think it can be said that this award was excessive. Although the judge appears to have overlooked Mr Cundy's final assessment of Travis' permanent disability, we do not think the award was manifestly inadequate. We would not interfere with this award.
Non-economic loss
The respondent complains that the allowance of $50,000 for past and future non-economic loss is manifestly inadequate. The respondent referred to the early history of multiple surgical procedures, the complications and the pain which had arisen therefrom, the loss in the teenage school years of the ability to participate in and enjoy sport, the constancy of pain and discomfort and loss of function and the fact that it would increase with the passage of time. In addition, Travis will suffer further discomfort, pain and restriction consequent upon possible future surgery. He may suffer the loss of enjoyment of working in his chosen career as a plumber, by reason of the inability to work freely at that trade, and the inability to work on until retirement.
Travis has made a good recovery from his injuries which, to a large extent, appears to be due to his positive attitude. He does, however, have a significant ongoing problem which includes permanent disability of the lumbar spine, representing approximately 35% loss of function. He is, therefore, a young man confronted with a lifetime of back pain. Mr Cundy thought it was possible, although unlikely, that surgical intervention would be required in the future. He said the surgery could entail a lumbar spine fusion if he developed symptoms of back discomfort which proved unbearable and did not respond to conservative management. In view of Travis' age, therefore, his back problem represents a serious disability. We think that the judge, in relying on the earlier report of Mr Cundy, failed to give sufficient weight to Travis' ongoing back problems, as well as the injury to his ankle. We would increase the award for non economic loss to $60,000.
Damages for Nervous Shock
The appellant has appealed against the award for damages for nervous shock in favour of Mr and Mrs Scott, Travis' parents.
Both Mr and Mrs Scott saw the plane go down. Mr Scott immediately got into his car and went to the accident site. Mrs Scott went separately but arrived shortly after her husband. They both saw the aftermath of the crash. It was obvious that Travis had suffered significant injuries. When Travis was stabilised, he was put into an ambulance. Mrs Scott was badly affected. She got into the ambulance but she was vomiting. She was given oxygen and told to keep breathing. She continued to suffer symptoms on the way to the hospital. She continued to have problems for some time thereafter.
The judge awarded Mrs Scott the sum of $15,000 for nervous shock and Mr Scott the sum of $10,000. The appellant did not take issue with the judge making an award for nervous shock in favour of either of the Scotts, but submitted that the judge had erred in that he had failed to distinguish between the mental consequences of the shock of seeing the injured boy immediately after the accident as opposed to the mental consequences of the disruption, disappointment and anxiety caused by later observation of his disability. Only the former was compensable.
In Jaensch v Coffey [26] the court held that the events constituting a road accident and its aftermath extend to the period of immediate treatment after the accident away from the scene of the accident. Brennan J said (at 567):
"I understand 'shock' in this context to mean the sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognizable psychiatric illness. A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential. If mere knowledge of a distressing phenomenon sufficed, the bearers of sad tidings, able to foresee the depressing effect of what they have to impart, might be held liable as tortfeasors."
And Deane J said (at 606):
"On the other hand, it would seem reasonably clear that the requisite duty relationship will not, on the present state of the law, exist in a case where mere psychiatric injury results from subsequent contact, away from the scene of the accident and its aftermath, with a person suffering from the effects of the accident. An example of psychiatric injury suffered as a result of such post-accident contact is that which may result from the contact involved in the nursing or care of a close relative during a period subsequent to immediate post-accident treatment: see, eg, Pratt [27] ."
And (at 608):
"the aftermath of the accident extended to the hospital to which the injured person was taken and persisted for so long as he remained in the state produced by the accident up to and including immediate post-accident treatment. Mrs Coffey sustained her psychiatric injury by reason of what she saw and heard at the hospital while her husband was under such treatment. Her psychiatric injuries were the result of the impact upon her of the facts of the accident itself and its aftermath while she was present at the aftermath of the accident at the hospital."
In Alcock v Chief Constable of South Yorkshire Police [28] the House of Lords expressed similar views. Lord Keith (at 397) cited the dicta of Deane J in Jaensch v Coffey (supra) (at 608). Lord Oliver said (at 416):
"Grief, sorrow, deprivation and the necessity for caring for loved ones who have suffered injury or misfortune must, I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must be sustained without compensation. It would be inaccurate and hurtful to suggest that grief is made any the less real or deprivation more tolerable by a more gradual realisation, but to extend liability to cover injury in such cases would be to extend the law in a direction for which there is no pressing policy need and in which there is no logical stopping point. In my opinion, the necessary proximity cannot be said to exist where the elements of immediacy, closeness of time and space, and direct visual or aural perception are absent."
These cases also refer to the distinction between what is the result of what one observed and what one is told.
In Jaensch v Coffey (supra), Brennan J (at 559-560) and Deane J (at 587) also drew the distinction for the purposes of the law of negligence between mere grief and sorrow which does not sound in damages as opposed to forms of mental illness (nervous shock) which may.
In this case, the judge's reasons as to this aspect of the matter are reasonably brief. He considered it unnecessary to recite the problems of either of the Scotts in any detail, preferring to accept the opinions of Dr Lucas which were contained in his reports. Dr Lucas did not give evidence at the trial. Dr Lucas' first report is dated 19 July 1993. He describes the events of the day in question and refers to Mrs Scott accompanying Travis to hospital and what happened over the next few days. He said that Mrs Scott started feeling better on the third week and, after describing her various problems, commented that the symptoms continued until Christmas 1990. He went on to describe panic attacks which she appeared to relate to worries associated with Travis' treatment. She referred to his last operation and said that his treatment "brings it all back". He finally concluded that Mrs Scott was suffering from a panic disorder and a post-traumatic stress disorder, both of which were attributable to the accident, her son's injuries and his prolonged treatment and rehabilitation. In his report dated 30 December 1996, Dr Lucas described Mrs Scott's condition as being improved, although he thought she was likely to continue to have anxiety symptoms on an intermittent basis. He opined that they were likely to be assisted by the completion of legal proceedings and by her son establishing himself in work and social activities.
The assessment of Mr Scott is contained in another report of Dr Lucas dated 19 July 1993. In that report, he said that Mr Scott described the effect of the accident on him as having made him "angry and disappointed" and the family could now not "do things and activities have been much curtailed". Mr Scott told Dr Lucas that he "had no time to be depressed and had looked forward to the few holidays they had managed to have". Mr Scott told Dr Lucas that after the accident he did not sleep for three or four days, "managing to survive on that". He described a lot of anxiety and tension in the first week after the accident, which had been "horrific". Dr Lucas' opinion was that Mr Scott had suffered an adjustment disorder with anxious mood following the accident to his son. He had settled down over a period of many weeks and was now in psychiatric good health.
On the evidence as it stands, it is difficult to differentiate between those symptoms suffered by Mrs Scott, which can be directly related to the aftermath of the accident, as opposed to those which may simply be associated with her need to care for her badly injured son. The medical reports suggest that up until about December 1990 she suffered problems which could be categorised part of the aftermath of the accident, but the difficulties described thereafter appear to a large extent to relate to her distress and concern of caring for her injured son which would not be compensable. It is unfortunate that Dr Lucas did not give evidence as these matters could then have been clarified. A similar difficulty arises with respect to the assessment of Mr Scott.
We consider that the judge failed to distinguish between the symptoms having regard to their causes, and in making his assessment included matters which did not directly relate to the aftermath of the accident. We would therefore allow the appeal and set aside the award. In each case, however, the award was relatively modest. We would re-assess the award in favour of Mrs Scott in the sum of $10,000. We would award Mr Scott the sum of $6,500.
Costs
Mrs Davis was joined in the proceedings as a defendant. In his judgment, the trial judge dismissed all three claims against her. In making the order for costs, however, he provided that Mr Davis be required to indemnify the plaintiff with respect to the order for costs made in her favour. It appeared that the plaintiffs were aware from an early stage of the proceedings that only Mr Davis was the owner of the aeroplane. The only basis upon which the case against Mrs Davis could be sustained was on the basis of a direct liability argument that failed. There was nothing in the conduct of Mr Davis which would require him to bear the costs of joining Mrs Davis.
We consider that the judge erred in principle in his exercise of the discretion with respect to this matter. There were no grounds for making this order. We would allow the appeal on costs for the purpose of setting aside paragraph 3 of the order dated 24 November 1997.
Future Medical Expenses
In the cross-appeal, the respondents submitted that the trial judge had erroneously failed to allow damages for the cost of the possible future surgery referred to by Mr Cundy.
The judge referred to the possibility that Travis might need a fusion at some future time but commented that the evidence was too vague to permit him to assess the need to provide for future medical expenses. He said, however, that he took the "chance" into account in his assessment of general damages. In the absence of some evidence from the respondents as to the possible costs associated with that surgery, we do not think the judge can be criticised for not making a specific award to cover this item. This ground of appeal fails.
Interest
The respondents by cross-appeal contended that the judge had erred in declining to award interest on monies paid by Travis' parents on account of special damages. The amount upon which interest was claimed at trial was $10,639.05. On the hearing of the appeal it was agreed that this figure was incorrect and that the correct amount paid by them was $4,417.05. The amended amount of interest sought was $1,546. The appellants did not take issue with this amount being included in the award. We would allow the cross-appeal and include this sum in the award.
Conclusions
Our conclusion is that the appellant should succeed on the appeal against the finding that he is vicariously liable for the negligence of Mr Bradford. That means that the judgment entered in the District Court against the appellant must be set aside, and a judgment should be entered in the District Court dismissing the claim against the appellant.
However, our conclusion raises an issue of principle. It is one on which minds might well differ. Accordingly, we have dealt with the other issues argued.
On those other issues, our conclusions are as follows:
(1) The appeal against the finding of negligence by Mr Bradford should be dismissed.
(2) The appeal and cross-appeal against the assessment of damages for loss of earning capacity should be dismissed.
(3) The cross-appeal against the assessment of damages for non-economic loss should be allowed, and the amount of damages awarded under that head should be increased to $60,000.
(4) The appeal against the assessment of damages for nervous shock should be allowed. The amount awarded to the second respondent should be reduced to $6,500. The amount awarded to the third respondent should be reduced to $10,000.
(5) The cross-appeal against the assessment of damages for future medical expenses should be dismissed.
(6) The cross-appeal claiming an award of interest on amounts paid by way of special damages should be allowed, and the amount of $1,546 should be added to the amount awarded to one or other of the second or third respondents.
(7) The appeal against the order that the appellant pay to the respondents the amount of the costs recovered by Sandra Kay Davis from the respondents should be allowed.
It follows from the above that the order that should be made in this Court is that the appeal be allowed, and that the judgment entered by the District Court against the appellant be set aside, and there be substituted for that a judgment dismissing the claim brought by the respondents against the appellant
MILLHOUSE J
I have had the advantage of reading in draft the joint reasons of the Chief Justice and Nyland J. I agree, with respect, with nearly everything which they have said. However there is one thing, quite central to the decision in the appeal, on which I have the grievous misfortune to differ from my brother and sister. That is the topic of vicarious liability. While I accept and admire their analysis of the case I cannot agree with their conclusion that the learned trial judge was wrong in following Morgans v Launchbury (1973) AC 127. I therefore do not think the appeal should be allowed.
Vicarious Liability
The appellants contend that even if Mr Bradford the pilot be found negligent, Mr Davis cannot be held vicariously negligent. This argument is based on Soblusky v Egan (1960) 103 CLR 215, which adopts a 'control' test for attaching vicarious liability.
In Soblusky v Egan , a unanimous decision of the High Court (Dixon CJ, Kitto and Windeyer JJ), Soblusky had arranged for himself and three other passengers, Egan, Anderson and Lewis, to be driven in his car to a lodge meeting. Lewis was asked by Soblusky to drive the car. After a time Soblusky asked Lewis if he minded if he went to sleep. While Soblusky was asleep, the car crashed due to the negligence of Lewis. Anderson was killed and Egan severely injured. An action was brought against Soblusky for negligence, essentially arguing that Soblusky was vicariously liable for the behaviour of Lewis. The action succeeded and Soblusky was found vicariously negligent.
The ratio is summarised by this paragraph at page 231:
"It means that the owner or bailee being in possession of the vehicle and with full legal authority to direct what is done with it appoints another to do the manual work or managing it and to do this on his behalf in circumstances where he can always assert his power or control. Thus, it means in point of law that he is driving by his agent. It appears quite immaterial that Soblusky went to sleep. That meant no more than a complete delegation to his agent during his unconsciousness. The principle of the cases cited is simply that the management of the vehicle is done by the hands of another is in fact and law subject to direction and control. This therefore must be regarded as an obvious case".
If one compares the situation in Soblusky v Egan with that here, it is difficult to distinguish between Soblusky who completely delegated his agency during unconsciousness and Mr Davis on the ground having told Mr Bradford to fly the respondent. Both situations are illustrations of a complete delegation of authority and control.
While Soblusky v Egan was seen as an obvious case, the Court did not rule out other situations which may be not so obvious. The present may be such a case, even though as I have said, it is difficult to differentiate between the two situations. The only difference is that in Soblusky v Egan the owner was in the vehicle whilst here the owner was on the ground while the aeroplane was in the air.
The learned trial judge found that Mr Davis 'did retain general control'. His Honour states:
"It was his plane. It was his airstrip. He acknowledged that, had he seen reason to do so, he would have 'grounded' Mr Bradford. He had control over the use, in general terms, to which the plane be put, and where it would be used."
It is arguable that Mr Davis in comparison to the unconscious Soblusky, even though on the ground, could have exerted control over his vehicle, for example, he could have waved or used semaphore.
I suggest that the 'control' test adopted in Soblusky v Egan is a bit outdated and difficult to apply. The notion of a sleeping individual asserting control over a vehicle in itself leads to a 'fiction' difficult to justify. The better approach is that adopted by the learned judge. He applied the English line of cases, namely Hewitt v Bonvin (1940) 1 KB 188, Ormrod v Crosville Motor Services Ltd (1953) 1 WLR 1120 and Morgans v Launchbury (1973) AC 127. These cases use principles of agency to attach vicarious liability.
The High Court agreed in Soblusky v Egan that:
"It is no doubt true that the development particularly in England of the branch of the law relating to the responsibility of the owner of a motor vehicle for the negligence of a person driving under his authority or consent has gone far."
Yet they did not apply it, nor did they consider the three English cases.
In Kondis v State Transport Authority (1984) 154 CLR 672 , Brennan J, obiter, said:
"A defendant is liable if he is the owner or bailee of the vehicle, if he appoints the driver to drive it on his behalf and if he is in the vehicle or is otherwise able to assert control over the driver: see Soblusky v Egan
(1960) 103 CLR 215, at pp 229-231. It is unnecessary to consider whether an owner's or bailee's liability is more extensive than the liability considered in that case (cf. Launchbury v Morgans (1973) AC 127).
Brennan J adopts the rather artificial test in Soblusky v Egan without considering the reasoning in Morgans v Launchbury .
In Morgans v Launchbury, a motor car was owned by, registered and insured in the name of Diane Launchbury. Thomas Launchbury, her husband, used the car to go to work and Mrs Launchbury used it for shopping at weekends. The car was appropriately described as 'our car'. The husband had told his wife that if ever he was unfit to drive through drink that he would get a sober friend to drive him or else telephone for her to come and fetch him. On such an occasion Mr Launchbury had Mr Cawfield drive, an accident occurred and Mr Launchbury and Cawford were killed. Others were injured and sought to have Mrs Launchbury held vicariously liable. Their argument centred around the husbands' undertaking to have someone else drive if he was drinking. This was a benefit it was argued, to Mrs Launchbury.
Viscount Dilhorne (@ p138):
"Although not in any way to blame for Mr Cawfield's negligent driving, she is responsible for his negligent acts if he was at the time of the accident driving the car as her servant or agent. In my view, the legal principle was correctly and accurately stated by MacKinnon L.J. in Hewitt v Bonvin [1940] 1 KB 188. He said, at p.191:
'If A suffers damage by the wrongful act of B, and seeks to say that C is liable for that damage he must establish that in doing the act B acted as the agent or servant of C. If he says that he was C's agent he must further show that C authorised the act. If he can establish that B was the servant of C the question of authority need not arise.'"
Viscount Dilhorne goes on to apply these principles of agency, finding that Mr Cawfield was not Mrs Launchbury's agent and Mrs Launchbury should not be vicariously liable. This approach of attaching vicarious liability relying on agency principles was adopted by all the members of the House of Lords in separate judgments.
During argument there was a lot of discussion as to whether adopting this agency approach would lead to a situation where mere permission or simply ingratiating oneself could result in a finding of vicarious liability.
Lord Wilberforce (@ p 135):
"Every man who gives permission for the use of his chattel may be said to have an interest or concern in its being carefully used, and, in most cases if it is a car, to have an interest or concern in the safety of the driver, but it has never been held that mere permission is enough to establish vicarious liability."
Again (@ p 137):
"I do not doubt that this is the existing law nor the validity of the Australian position that to base liability on permission would be a matter for legislation".
Lord Cross of Chelsea (@ p 144):
"I do not think that the law has hitherto been that mere permission by the owner to use the chattel coupled with the fact that the purpose for which it was being used at the relevant time was one in which the owner could be said to have an interest or concern would be sufficient to make the owner liable in the absence of any request by the owner to the user to use the chattel in that way."
All the members of the House of Lords were keen to make this distinction: mere permission should not attach liability. Equally, they were keen to eschew any notion of liability based on the 'family car' as espoused by Lord Denning M.R. in his judgment in the Court of Appeal, [1971] 2 Q.B. 245.
The argument against the English line of cases, based on the notion that it will lead to mere permission attaching vicarious liability, is very weak.
The present is a difficult case in terms of permission and agency. On the facts it is not clear whether Mr Davis took it upon himself to put the young Travis Scott in the aeroplane, thus assuming responsibility for the pilot's negligence, or whether Mr Scott senior requested that Travis be given a ride: if the latter then this could amount to mere permission on the part of Mr Davis. The learned trial judge found that Mr Scott did make some request and says (@ p 352):
"There is no evidence of a request that the rides be in any particular plane, or with any named pilot. It was a general request. It might have been met by, for example, Mr Davis personally taking them up in the Stearman. Mr Davis clearly exercised his own powers of decision making to grant permission for the boys to fly and in implementing that decision by arranging for his wife to ask Mr Bradford to do it. He was not merely a conduit."
The finding was not impugned on appeal and I accept it. If the request had been in some more precise terms then possibly the learned judge may have found that Mr Davis was simply ingratiating himself to his guests. That was not so and the learned judge was aware that 'permission to use is not, alone, enough to found liability'.
Principles of agency require that, for a defendant to be liable, the defendant must retain the right to control the use of the chattel and must have an interest in the purpose for which it is being used. In other words, the defendant must obtain a benefit. In considering this aspect of agency Lord Cross in Morgans v Launchbury (@ p 144):
"In deciding whether or not the user was or was not the agent of the owner it may no doubt be relevant to consider whether the owner had any interest in the chattel being used for the purpose for which it was being used. If he had no such interest that fact would tell against the view that the user was his agent while conversely the fact that the owner had an interest might lend support to the contention that the user was acting as the owner's agent."
The learned judge found that Mr Bradford, the user of the chattel, 'had no interest in those boys'. Furthermore, His Honour found that the owner, Mr Davis, did have an interest in the plane being used for the purpose of flying the respondent. He says in his reasons (@ p 353):
"If one searches for benefit to him, it goes no further than giving himself the satisfaction of being a kind host in giving pleasure to his guests. There was no obligation or profit motive on his part."
He recognises that benefit need not be solely financial, that benefit can come from other sources, for example, the satisfaction in organising a successful party, of a job well done. I think his reasoning is correct. Mr Davis did exert general control and ought be responsible for his aircraft and the damage it caused having delegated its operation to another for his own benefit.
There is no basis for distinguishing the English authorities because they relate to motor cars rather than aeroplanes. As a matter of logic there can be no such distinction and the law should strive always, to be logical. This is the crux of my disagreement with the other members of the Court. Support for this point of view comes from Canada.
In Rand v Bomac Construction Ltd (1988) 55 DLR (4 th ) 467, a decision of the Court of Appeal of Saskatchewan, Hall JA said:
"In the absence of any statutory provision, the fact that Bomac gave permission to Jackie Plewes to fly the aircraft which it owned does not, standing alone, make the appellant Bomac vicariously liable. It has not been suggested that there is any such statutory provision. The liability, if any, must be based on the common law.
The common law provides that a master is liable for the negligence of a servant if it is committed in the course of the servant's employment but not for negligence committed outside the course of employment. Generally this provision applies to all agents."
Hall JA then goes on to apply Hewitt v Bonvin and Morgans v Launchbury to the facts of an aircraft accident without even considering that there could be a difference in the common law between motor vehicles and aircraft.
In Pawlak v Doucette [1985] 2 WWR 588 it was argued that the principles embodied in Morgans v Launchbury be restricted to motor cars and not extended to cover in that case, a motor boat. The argument was rejected. In rejecting it, Millward LJSC (@ p 600-601):
"Thus, an extension of the principle beyond automobiles to chattels, such as a motor boat, where the principal furnishes the chattel, meets the concern that the principle is not a general principle for vicarious liability of agents, yet retains liability where the causal connection establishes a relationship of the use of the principal's property for the principal's purpose. Indeed, judicial dicta seem to imply that the courts have attempted to establish that the extension of vicarious liability in this form is not a special rule regarding motor cars. In his reasons for judgment, in the case of Morgans , supra, Lord Cross of Chelsea, at p. 616, refers to the law of vicarious liability of the owner of a chattel, and states:
'The owner of a chattel will be liable if the user of it was using it as his servant or his agent.'
See also Fleming, at p. 374, where he states:
'Yet the courts, with the House of Lords recently taking the lead, have fostered the pretence that there are no special rules for motor cars, even cultivating the rationale of 'delegated task' in the belief that it was policy-neutral.'" As well as the Australian authorities mentioned in the judgment of my brother and sister there are a number of more recent cases which adopt the principle of vicarious liability following the English line of cases.
In the Supreme Court of the Australian Capital Territory, Miles CJ in Lansdown v W.T.H. Pty Ltd (1990) 10 MVR 335 spoke of the English authorities when considering vicarious liability:
"Moreover, authorities in Australia such as Jennings v Hannan (1968) 89 WN (Part I) (N.S.W.) 64 to the effect that proof of ownership of a vehicle, particularly a commercial vehicle, by a defendant is sufficient prima facie evidence of the driver's agency do not cut across the principle confirmed in Launchbury v Morgans .
The Tasmanian Supreme Court in two recent decisions has adopted the principle in Morgans v Launchbury .
In Pratt v Connolly (1994) Aust. Torts R. 81-283 Cox J said:
"It is trite law that ownership of a car cannot of itself impose any liability upon the plaintiff ( Hewitt v Bonvin (1940) 1 KB 188 per du Parcq LJ at 194). It is a question of fact in each case as to whether there is agency ( Daniels v Vaux (1958) 2 All ER 271). In order to fix vicarious liability on the owner of a motor vehicle, it must be shown that the driver was using it for the owner's purposes under delegation of task or duty. Mere permission to use the car is not sufficient to establish vicarious liability ( Launchbury v Morgans (1973) AC 127 at 135 per Lord Wilberforce)."
That passage has recently been quoted with approval by Wright J in Barnett and Barnett Trading as Advance Car Rentals v McCrossin, Tate and Watley (Third Party); G D and E Watley v Tate and McCrossin; Tate v Advance Car Rentals, G D and E Watley and A R Lewis (unreported, Tasmanian Supreme Court, 2 August 1995).
I suggest therefore that the appeal with respect to vicarious liability should be dismissed. It follows that in so far as it concerns liability the appeal should be dismissed. In other respects I agree with the conclusions of the majority.
FOOTNOTES:
[1] [1973] AC 127
[2] Butterworths, London, 1967
[3] [1953] 1 All ER 711
[4] (1951), 77 Atl 2d 634
[5] (1955), 126 NE 2d 592, SC Ohio
[6] 9th Ed, LBC Information Services 1998
[7] (1931) 46 CLR 41
[8] (1960) 103 CLR 215
[9] (1987) 45 SASR 111 at 119-120
[10] (1984) 154 CLR 672 at 692
[11] [1928] SASR 60
[12] [1964] NSWR 687
[13] [1953] 2 All ER 753
[14] (1941) 43 SR(NSW) 317
[15] (1948) 65 WN(NSW) 159
[16] (1959) 77 WN(NSW) 97
[17] [1964] SASR 119
[18] (1969) 89 WN(Pt.2)(NSW) 232
[19] [1965] WAR 95
[20] [1971] Qd R 453
[21] (1972) 20 FLR 311
[22] (1994) 19 MVR 81
[23] [1986] 1 NZLR 275
[24] [1985] 2 WWR 588
[25] (1988) 55 DLR (4 th ) 467
[26] (1984) 155 CLR 549
[27] [1975] VR 378
[28] [1992] 1 AC 310
- AGLC
- Geoffrey Arthur Davis and Sandra Kay Davis v Travis Kane Scott, Geoffrey Stephen Scott and Gaynor June Scott No. Scgrg-97-1509 Judgment No. 6745 Number of Pages - 29 Torts [1998] SASC 6745
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- [1998] SASC 6745
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