Gutman v McFall

Case [2004] NSWCA 378

Reported Decision:

 61 NSWLR 599

Court of Appeal


CITATION: Gutman v McFall [2004] NSWCA 378 revised - 3/11/2004
HEARING DATE(S): 10 September 2004
JUDGMENT DATE:
22 October 2004
JUDGMENT OF: Mason P at 1; Giles JA at 2; McColl JA at 71
DECISION: (1) Appeal allowed; (2) Set aside the plaintiff's judgment and order for costs against the first defendant and in lieu thereof order that there be judgment for the first defendant and that the plaintiff pay the first defendant's costs; (3) Set aside any judgment and order for costs in favour of the first defendant as cross-claimant against the second defendant as cross-defendant and in lieu thereof order that the cross-claim be dismissed and that the cross-claimant pay the cross-defendant's costs of the cross-claim; (4) Direct that within 21 days the appellant inform Mr Neumann by letter sent to his last known address of the result of the appeal and the orders in 3; (5) Liberty to apply within 14 days for any variation of or addition to the orders in 3 and 4; (6) Respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified.
CATCHWORDS: Vicarious liability - principle in Soblusky v Egan (1960) 103 CLR 215 - whether confined to motor vehicles - whether dinghy with outboard motor is motor vehicle for the purposes of the principle - reference to agency as basis for vicarious liability - consideration of Scott v Davis (2001) 204 CLR 33 - held yes and no. D
CASES CITED: Booth v Mister (1835) 7 Car & P 66; 173 ER 30;
Chandler v Broughton (1832) 1 C & M 29; 149 ER 301;
Christmas v Nicol Bros Pty Ltd (1941) 41 SR 317;
Davis v Scott (1998) 71 SASR 361;
Equipment Investment Pty Ltd v M J Downthwaite & Co Pty Ltd (1969) 16 FLR 23;
Hewitt v Bonvin (1940) 1 KB 188;
Jacobs v London County Council (1950) AC 363;
Lake v Quinton (1973) 1 NSWLR 111;
Morgans v Launchbury (1973) AC 127;
Moynihan v Moynihan (1975) IR 192;
Ormrod v Crosville Motor Services Ltd (1953) 2 WLR 1120;
Pawlak v Doucette (1985) 2 WWR 588;
R v Thornton (1949) 96 Can Cr Cas 323;
Samson v Aitchison (1912) AC 844;
Scott v Davis (2001) 204 CLR 333;
Soblusky v Egan (1960) 103 CLR 215;
"Thelma" (Owners) v University College School (1953) 2 Ll L Rep 513;
Wheatley v Patrick (1837) 2 M & W 650; 150 ER 917.

PARTIES :

 Evian Gutman - Appellant
James Anthony McFall - Respondent
FILE NUMBER(S): CA 40897/03
COUNSEL: J Glissan QC & A Reoch - Appellant
I Harrison SC & T Hughes - Respondent
SOLICITORS: Teakle Ormsby Conn - Appellant
Stacks Goodchamp - Respondent
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 534/01
LOWER COURT
JUDICIAL OFFICER : 		Walmsley DCJ


                          CA 40897/03
                          DC 5340/01

                          MASON P
                          GILES JA

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AGLC
Gutman v McFall [2004] NSWCA 378
Case
[2004] NSWCA 378
Decision Date

CaseChat Overview and Summary

The appeal in *Gutman v McFall* concerned the vicarious liability of a boat owner for the actions of the person driving the boat. The dispute arose from an incident involving a dinghy with an outboard motor. The primary legal issue before the Court of Appeal of New South Wales was whether the principle established in *Soblusky v Egan* (1960) 103 CLR 215, which imposes vicarious liability on the owner of a motor vehicle for the negligence of the driver, extended to the owner of a dinghy with an outboard motor. The court also considered whether agency was the appropriate basis for vicarious liability in this context, referencing *Scott v Davis* (2001) 204 CLR 33.

The court determined that the principle in *Soblusky v Egan* was not confined solely to motor vehicles in the conventional sense. However, it held that a dinghy with an outboard motor did not constitute a "motor vehicle" for the purposes of that specific principle. The reasoning focused on the nature of the vehicle and the scope of the *Soblusky v Egan* rule, distinguishing it from broader principles of agency that might otherwise ground vicarious liability.

Ultimately, the appeal was allowed. The plaintiff's judgment and costs order against the first defendant were set aside, and judgment was entered for the first defendant, with the plaintiff ordered to pay the first defendant's costs. Any judgment and costs order in favour of the first defendant as cross-claimant against the second defendant as cross-defendant were also set aside, with the cross-claim dismissed and the cross-claimant ordered to pay the cross-defendant's costs of the cross-claim. The appellant was directed to inform Mr Neumann of the appeal's outcome and the orders made.

Orders

Orders of the court

(1) Appeal allowed; (2) Set aside the plaintiff's judgment and order for costs against the first defendant and in lieu thereof order that there be judgment for the first defendant and that the plaintiff pay the first defendant's costs; (3) Set aside any judgment and order for costs in favour of the first defendant as cross-claimant against the second defendant as cross-defendant and in lieu thereof order that the cross-claim be dismissed and that the cross-claimant pay the cross-defendant's costs of the cross-claim; (4) Direct that within 21 days the appellant inform Mr Neumann by letter sent to his last known address of the result of the appeal and the orders in 3; (5) Liberty to apply within 14 days for any variation of or addition to the orders in 3 and 4; (6) Respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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